The Disciplinary Board's authority under Rule 28 is limited to procedural matters, not substantive findings, and it must act on the Disciplinary Committee's determinations.

JUDGMENT

Collin Lawrence Sequerah JCA:

(A) Introduction

[1] This is the appellant/intervener's appeal against the decision of the learned High Court Judge ("HCJ") on 27 March 2023 in allowing the appeal against the appellant's order dated 26 February 2023.

[2] This appeal relates to the power of the appellant (Disciplinary Board) ("DB") in directing its Disciplinary Committee ("DC") to make a finding on the respondent's liability vide a letter dated 19 April 2019 pursuant to r 28 of the Legal Profession (Disciplinary Proceedings) Rules 2017, ("2017 Rules").

(B) Background Facts

[3] The pertinent facts that led to this appeal emanate from the appointment of the respondent who is a practicing lawyer and was appointed by the Complainant, Tok Tiak Hoong ("the Complainant") to handle a legal matter against CIMB on her behalf.

[4] There is no dispute that the Complainant paid the sum of RM50,000.00 to the respondent.

[5] There exists a dispute as to whether the said sum was paid by way of a retainer for the specific purpose of initiating legal action against CIMB or whether it was also in relation to other matters involving legal matters relating to the Complainant, her son and her former companies, Hock Sang Realty and Hock Sang Travel Centre (M) Sdn Bhd.

[6] On 18 November 2016, the Complainant informed the respondent that she will handle her legal matters and her Companies' legal matters on her own.

[7] The Complainant subsequently lodged a complaint against the respondent through a letter dated 12 February 2017 to the Advocates and Solicitors Disciplinary Board ("DB") of the appellant, which was registered as Complaint No DB/17/0093.

[8] The DB then issued a letter dated 2 June 2017 to the respondent and requested for an explanation from him pursuant to s 100(1)(b)(i), (ii) of the Legal Profession Act 1976 (" LPA ").

[9] On 16 June 2017, the respondent submitted his written explanation to the DB.

[10] On 6 July 2017, the DB requested the Complainant to submit the response to the respondent's written explanation but the Complainant did not respond.

[11] On 11 January 2018, the DB appointed a Disciplinary Committee ("DC") to investigate the complaint pursuant to s 103A of the LPA .

[12] On 13 March 2018, the DC proceeded with the hearing of the Complaint ("DC hearing") but did not make any definitive ruling ("First Finding") but instead stated as follows:

"There is no 'clear cut' of the meaning of retainer. Subject to DB's ruling."

[13] The matter was then referred to the DB. On 19 April 2019, the DB directed the DC to make a finding on the respondent's liability. The letter, which was addressed to the Chairman of the DC, inter alia, stated as follows:

'Hence, pursuant to r 28 of the Legal Profession (Disciplinary Proceedings) Rule 2017, the Board hereby directs your Committee [to] make a finding on the respondent's liability and if so find liable, to make the appropriate recommendation on punishment pursuant to s 103C of the Legal Profession Act 1976 ."

[14] The DC then reconvened as directed by the DB.

[15] On 20 January 2020 the DC found that the respondent was dishonest and committed fraud against the Complainant. It accordingly held that the respondent was guilty and imposed a fine of RM5,000.00 on him.

[16] The DC further ordered the respondent to render the bill of charges for work done and disbursement incurred and refund the balance of the RM50,000 retainer to the Complainant ("Second Finding").

[17] On 4 February 2022, the DB wrote to the respondent stating:

(a) The DB was of the view that the DC Chairman could not rely on an inference that just because a sum of RM50,000.00 had been paid as the retainer, then the respondent had committed fraud.

(b) There was no solid evidence to suggest that any fraud had been committed, bearing in mind that the standard of proof in disciplinary proceeding is beyond reasonable doubt.

(c) There was no finding by the DC as to whether the RM50,000.00 paid to the respondent was a consultant fee or for the co