An appeal under s 103E of the Legal Profession Act 1976 can only be made against a final order that includes both liability and punishment; preliminary notifications are not appealable.

JUDGMENT

Mohd Nazlan Mohd Ghazali JCA:

Introduction

[1] This was an appeal against the decision of the High Court dismissing the appellant's challenge against the finding of misconduct made by the Advocates & Solicitors Disciplinary Board under the Legal Profession Act 1976 ("the LPA 1976").

[2] Whilst the merits of the challenge have yet to be heard and the dismissal was by the High Court upholding a preliminary objection raised by the respondent, this appeal examined the true remit of s 103E of the LPA 1976 in a situation where the challenge was made on a finding of liability made by the Disciplinary Board despite the decision on the punishment was still pending.

[3] Having heard the appeal, examined the appeal record and considered the submissions by parties, we unanimously decided to dismiss the appeal for the reasons set out hereinunder.

Key Background Facts

[4] The appellant is an advocate and solicitor. A complaint was made against her to the Disciplinary Board set up under s 93 of the LPA 1976. A second complaint was later lodged to the Disciplinary Board against the appellant by the employer of the first-mentioned complainant.

[5] However, both these complaints were subsequently withdrawn.

[6] Notwithstanding the withdrawals, the Bar Council - the respondent herein, decided to intervene in and pursue the complaints against the appellant. This led to the Disciplinary Board directing the Disciplinary Committee to proceed with the investigation into the complaints.

[7] On the conclusion of the investigations, the Disciplinary Committee in its report dated 8 February 2021 recommended to the Disciplinary Board that the appellant ought to be reprimanded and issued with a fine in the sum appropriate with the severity of the appellant's misconduct under s 103C(1)(c)(i) of the LPA 1976. This was subsequently stated to be the sum of RM5,000,00.

[8] On 9 September 2022, the Disciplinary Board affirmed the finding of liability but rejected the recommendation on punishment for the fine of RM5,000.00, as stated in a letter from the Disciplinary Board dated 13 October 2022 to the appellant, which was received by the latter on 14 October 2022. In that same letter of 13 October 2022, the Disciplinary Board also notified the appellant that before the Disciplinary Board would proceed to make an order that would likely be adverse against the appellant, she was invited to attend the proceedings in order to afford her with a reasonable opportunity to be heard in accordance with s 103D(2) and 103D(4) of the LPA 1976.

[9] The appellant as well as her counsel did as a result on 12 November 2022 attend the proceedings before the Disciplinary Board.

[10] Not long after, on 14 November 2022, the appellant filed an Originating Summons ("the OS") at the High Court to appeal against the Disciplinary Board's letter dated 13 October 2022 pursuant to s 103E of the LPA 1976, by seeking an order that the decision of the Disciplinary Board on the finding of liability be set aside.

[11] In the meantime, on 7 January 2023, the Disciplinary Board issued an order dated 7 January 2023 which affirmed the Disciplinary Committee's finding of liability and ordered pursuant to s 103D(1) of the LPA 1976 that the appellant pay a fine of RM20,000.00, and that she be suspended from practice for three months.

[12] The High Court on 3 April 2023 decided to allow respondent's preliminary objection against the OS and therefore dismissed the same.

[13] Dissatisfied, the appellant on 2 May 2023 filed an appeal against the dismissal. Hence the appeal now before us.

The Verdict of the High Court

[14] The mainstay of the case of the respondent, as accepted by the High Court , was that the OS filed by the appellant to appeal against the Disciplinary Board's letter dated 13 October 2022 ("the DB Letter of 13 October 2022") under s 103E of the LPA 1976 was both premature and incompetent because the DB Letter dated 13 October 2022 was not a final order or decision that