The breach of duties by solicitors as stakeholders, without verified consent, constitutes professional misconduct.

Introduction

[1] The Advocates & Solicitors Disciplinary Board ("Disciplinary Board") on 7 January 2022 suspended the appellant from practising as an advocate and solicitor of the High Court of Malaya for a period of two years and to make restitution in the amount of RM190,000.00 to the respondent, Mazlan bin Abdullah. The decision was made under s 103D of the Legal Profession Act 1976 (" LPA ") after the Disciplinary Board had agreed with the findings and recommendations of the Disciplinary Committee that the appellant was liable as per the complaint brought by the respondent.

[2] The misconduct complained of was that the appellant had committed a breach of his undertaking as a stakeholder of monies entrusted to him. The appellant was alleged to have released the monies held as stakeholder without the consent of the respondent in breach of the terms of the undertaking as stakeholder.

[3] The Bar Council was allowed to intervene and supported the decision of the Disciplinary Board.

[4] On 5 December 2022, I dismissed the appeal. This judgment contains the full reasons for my decision.

Background Facts

[5] The respondent was seeking a datukship title for himself and was on 3 February 2017 introduced to one Dato' Kumaresan at the latter's office in Petaling Jaya. Dato' Kumaresan said that he was able to assist the respondent to obtain a datukship within a month provided a donation of RM190,000.00 be made. Dato' Kumaresan required that a cheque be issued to his solicitor, the appellant who would be holding the monies as stakeholder. Dato' Kumaresan then called the appellant to attend his office.

[6] The appellant arrived at Dato' Kumaresan's office and was introduced to the respondent and appraised of the transaction. The respondent issued a cheque for RM190,000.00 in the name of the appellant's firm and which monies were to be held by the appellant as stakeholder. On the same day, respondent attended the appellant's firm and was given a letter of confirmation dated 3 February 2017. The fact that the appellant held the monies as stakeholder was beyond dispute as per the letter of confirmation which state as follows:

We refer to the above matter wherein we act for Dato' Kumaresan a/l K Naggiah.

We write to confirm that we had received a Standard Chartered Bank Cheque No 800061 dated 3 February 2017 for the amount of RM190,000.00 on behalf of Dato' Kumaresan a/l K Naggiah.

We confirm that we shall hold the said sum as stakeholder pending the fulfilment of a work entrusted by your good selves to Dato' Kumaresan.

[Emphasis Added]

Yours faithfully.

[7] The undisputed evidence before the disciplinary committee shows that the appellant had released the monies to Dato' Kumaresan by way of cheques on 7 February 2017 and the latter had acknowledged receipt of the same vide letter dated 8 February 2017. On 8 June 2017, the respondent sought the return of the monies as the said work entrusted was not carried out by Dato' Kumaresan. The appellant by letter dated 9 June 2017 denied the contents of the respondent's letter and stated that the monies were released upon the respondent's verbal confirmation and instructions.

[8] The appellant in his letter dated 28 January 2019 to the Disciplinary Board stated that verbal confirmation and instructions were received from the respondent on 7 February 2017 who had attended his firm together with Dato' Kumaresan and that five cheques were issued totalling RM190,000.00 as he was made to understand that the recipients were five charitable entities. The respondent denied giving any verbal consent and instructions as alleged by the appellant by making up fictitious facts.

[9] On 30 Apr