JUDGMENT

LEE HUN HOE CJ (BORNEO)

(delivering the Judgment of the Court):

The appellant, an advocate and solicitor, was charged and convicted for contempt and sentenced to three days imprisonment by the learned Judge. The charge arose out of an alleged breach of duty as counsel during a trial while representing the 2nd intervener. We dismissed the appeal but varied the sentence by imposing a fine of $ 1,000 or three days imprisonment in default of payment. We stated we would give our reasons. We do so now.

Briefly, the State Government of Trengganu (plaintiff) sued Solomon Thuraiappah Holdings Sdn. Bhd. (defendant) for specific performance of a contract for the sale of the premises known as the Solomon Court. Three other purchasers of lots in the premises intervened in the proceedings. The plaintiff and the defendant had since come to terms leaving the three interveners to sort out their disputes with the defendant. When the case came up for hearing on May 29, 1984 it was agreed that the claim of the 2nd intervener be dealt with first. Encik Cheah Cheng Hoc appeared for the 2nd intervener and Encik A. Kanesalingam for the defendant.

After the close of the defendants case Encik Cheah applied to recall Encik Tee Ching Huat, a director of the 2nd intervener, in order to put in a document C.P.5 written by Encik Andrew Chng on June 27, 1980. He explained that he came to know of that document only on May 28, 1984, the day before the hearing. He decided, after discussing with his client, not to produce the document so as not to confuse the court.

The 2nd interveners story is that the agreement was signed sometime in May 1980 and collected by Encik Andrew Chng from the 2nd intervener on June 4, 1980 as evidenced by the document marked P.4. On the other hand, the defendants story is that there was no such agreement in existence in May, 1980. Encik Rekhraj, whose firm acted for the defendant, gave evidence to the effect that the agreement was ready for signature on June 25, 1980. He said his secretary received from a person called Andrew a note which reads:

"Kindly allow bearer to collect the sale and purchase agreement for

Messrs Tee Hup Seng Holdings Sdn. Bhd. so that we can get it signed by

the directors of the company."

As a result he wrote to the defendant a letter dated June 25, 1980, containing, inter alia, the following:

"We refer to this morning telephonic conversation with your Mr. Andrew

and now forward herewith four (4) copies of the Sale and Purchase

Agreements to enable you to have the said documents

executed by two (2) directors at the places marked X in pencil and

the affixing of the common seal at the place marked Y."

He said he never got back the agreements.

Encik Cheah realised that if Encik Rekhrajs story was true then P.4 made no sense as there was no agreement in existence until June 25, 1980. So, he sought to put in C.P.5 which is in the handwriting of Encik Andrew Chng and reads as follows:

"27/6/80.

Dear Adam,

Please sign up these agreements and get your sister to sign with the

companys seal.

Meantime, please advise Kenny to prepare cheque for the fees of $ 720

in the name of Solomon Thuraiappah Holdings Sdn. Bhd.

Please hand over the Pangkor Court Tourist Complex documents to Kenny

for reference.

Thanks.

Signed Andrew Chng."

So, on May 28, 1984 there were two documents with conflicting dates. Faced with such a situation the appellant questioned both Encik Adam Tee and Encik Andrew Chng. They could not explain the discrepancies but merely said that as P.4 was prepared by a firm of professional auditors it must be correct. The appellant never took the trouble to check with the firm of auditors as to the correctness of the date before he took the stand to withhold C.P.5. After hearing Encik Rekhraj he realised that the date stated in P.4 could not be right. So, he tried to put in C.P.5 and to recall Encik Tee Ching Huat in order to establish the credibility of the witness. Not surprisingly, the learned Judge took a very serious view of the ma