Gopal Sri Ram JCA:

The appellant is an advocate and solicitor. He was found guilty of misconduct unbecoming of an advocate and solicitor by the disciplinary committee. He appealed to the High Court. His appeal was dismissed. He then appealed to this court. We heard his appeal on 16 February 1998 and dismissed it. The reasons for our decision are as follows.

The facts relevant to this appeal are not in dispute. The appellant practises under the name and style of Gana Muthusamy & Co. At all material times the appellant represented the landlord of certain premises in Johor Baru. The tenant was represented by M/s L.M. Ong & Co, a firm of advocates and solicitors. They are the respondents to this appeal. The landlord commenced an action against the tenant in the Sessions Court. While that action was still pending, the respondents, on 30 March 1989, paid to the appellant a sum of RM520 as rental for the months of April and May 1989. The appellant's receipt, however, treated that sum as payment of mesne profits. So did his letter under the cover of which he sent the receipt to the respondents. There then followed an exchange of correspondence between the parties. The respondents protested at the appellant's appropriation of the sum of RM520 as mesne profits. They took the position that the appellant ought to accept the payment as rent or return it: he could not unilaterally elect to treat it as mesne profits in the absence of a judgment in the landlord's favour. The appellant stood his ground. Later, upon the respondents' complaint, the matter went before the disciplinary committee. After inquiring into the matter, that committee found the appellant was guilty of conduct unbecoming of an advocate and solicitor. It censured the appellant, but made no order as to costs. The High Court, on the appellant's appeal, affirmed the decision of the disciplinary committee.

Before us, Encik Chandran of counsel for the appellant argued that his client was merely guilty of an error of judgment not amounting to professional misconduct. We do not agree.

The respondents sent him the money in question as payment of rental. If the appellant was not minded to receive the payment for the purpose for which it was sent he ought to have rejected it. Instead, he appropriated the money for a purpose other than the purpose for which it was sent. The evidence shows that the appellant had sufficient opportunity to repent and put matters right by refunding the payment to the respondents. Instead, he was adamant in contending that what he had done was entirely proper. It is beyond comprehension how the appellant could have deemed it proper to appropriate the payment in question to account of mesne profits in the absence of a finding by the Sessions Court in the landlord's favour. The appellant's conduct, therefore, leaves no room for the suggestion that there was a mere error of judgment on his part. We consequently find ourselves in agreement with the conclusions of the disciplinary committee and the learned judges of the High Court.

It is primarily for members of the Bar to decide what amounts to conduct unbecoming of an advocate and solicitor in particular circumstances, according to standards established by members of that honourable profession. Courts must necessarily exercise caution when entertaining an appeal in which the central question is whether particular conduct is unprofessional and cases meriting curial interference will be rare. Otherwise it will be the court and not the profession that will determine the yardstick of professional behaviour. We would, in this context, express our agreement with the following passage in the Guide to the Professional Conduct of Solicitors issued by the Council of the Law Society in 1974, quoted by the learned judges of the High Court in their judgment:

One of the hallmarks of a developed profession is that it should lay down and maintain standards of professional conduct for its members based upon the