ALASAN PENGHAKIMAN

Faiza Tamby Chik J:

I propose to deal first with r 54 of the Accountants Rules 1972 (the Rules). I think the Disciplinary Committee of the 1st Respondent has failed to comply with r 54 of the Rules at the hearing of the Disciplinary Committee held on 12 August 1999. As a result the non-compliance of the said rule, the hearing of the Disciplinary Committee should be ruled to be a complete a nullity in law. Rule 54 of the Rules provides that:

"All evidence given at the hearing of any matter by the Disciplinary Committee shall be given orally:

Provided that the Disciplinary Committee shall also be entitled to receive sworn affidavits from any person of it considers them necessary for the better consideration of the matter."

A copy of the Notes of Proceedings for the hearing of the Disciplinary Committee held on 12 August 1999 is in the Affidavit of Ho Foong Moi affirmed on 3 June 2000 in exhibit "HFM-1" (Enclosure 10). It is obvious from the Notes of Proceedings that the hearing of the Disciplinary Committee were conducted in the following manner:

(1) the charge was read out by the secretary followed by a plea of "not guilty";

(2) the chairman of the Disciplinary Committee asked one Goh Joon Hai, who was a member of the Investigation Committee to read the "Statement of Facts". The representative for the Applicants; Adam Primus were asked whether he admitted to the facts which he did;

(3) the representative for the Applicants was asked whether he would like to make his submission or cross-examine; and

(4) the representative for the Applicants then made his submission;

(5) Goh Joon Hai then made his submission on behalf of the Investigation Committee; and

(6) the Chairman of the Disciplinary Committee then adjourned the hearing for decision on a date to be fixed.

It is clear from the Notes of Proceedings that, apart from the "Statement of Facts" read by the said Goh Joon Hai, no oral evidence or sworn affidavit was adduced at the hearing of the Disciplinary Committee. Goh Joon Hai was not a witness for any party as is evidenced from the Notes of Proceedings. Goh Joon Hai was indeed, acted as the "prosecutor" for the Investigation Committee and had made submission on behalf of the Investigation Committee. In brief r 54 of the Rules provides that all evidence given at the hearing of Disciplinary Committee shall be given orally or by way of sworn affidavits. Black's Law Dictionary, 6, Edn has at page 1095 defined "oral evidence" to mean:

"Evidence given by word of mouth; the oral testimony of a witness..."

As r 54 of the Rules requires evidence to be given orally, I am of the view that the rule envisages that oral evidence is to be given by witnesses who are able to give direct evidence of the fact. At common law, the principle that the right to be heard is non-inclusive of a duty to afford an oral hearing does not mean that the failure or refusal to afford such a hearing would render the decision reached safe and harmless from attack. Cases may arise where, in the light of peculiar facts, the failure to afford an oral hearing may result in the decision arrived at being declared a nullity or quashed: per Gopal Sri Ram JCA in Raja Abdul Malek Muzaffar Shah bin Raja Shahruzzaman v. Setiausaha Suruhanjaya Pasukan Polis, [1995] 1 MLJ 308. This common rule principles would not apply here because r 54 of the Rules specifically provide that all evidence given at the hearing of a Disciplinary committee be given orally or by way of sworn affidavits. The failure to adduced oral evidence through witness would deprive the Applicants the right to cross-examine the witnesses. Cross-examination has four major aims:

(1) discrediting the testimony of the witness being examined;

(2) using the testimony of a witness to discredit the unfavourable testimony of other witnesses;

(3) using the testimony to those witnesses to corroborate the favourable testimony of other witnesses;

(4) using the testimony of a witness to contribute independently to the favo