An advocate must be afforded the opportunity to be heard before the Disciplinary Board imposes any penalty, whether greater or lesser than that recommended by the Disciplinary Committee.

[1] The appeal before us centres on the application of s 103D of the Legal Profession Act 1976 ( LPA ), that is, whether an advocate and solicitor should be given the opportunity to be heard before the Disciplinary Board (DB) makes an order that is likely to be adverse against him if the DB intends to impose a greater or lesser penalty or punishment than that recommended by the Disciplinary Committee (DC).

[2] The questions of law for our determination are as follows:

(i) Whether the 1st respondent (Syed) needs to be given the opportunity to be heard under s 103D(4) of the LPA when the DB has already reduced his penalty or punishment; and

(ii) Whether the word "adverse" under s 103D(4) of the LPA should be read in the context of "greater or lesser" under s 103D(2) of the .

[3] On 10 April 2023 after having heard and considered the submissions of the respective Counsel for the parties, we dismissed the appeal. We now give our reasons.

Factual Background

[4] The facts are not disputed. The factual background to this dispute was set out in the Judge's clear and comprehensive judgment. The 2nd Respondent, a developer, complained to the DB that Syed, an advocate and solicitor practicing as a sole proprietor in the firm of Messrs. Syed Anuar & Associates in Ipoh, Perak, had acted in a conflict of interest. Sometime in August 2012, the 2nd Respondent was engaged in a joint venture agreement (JVA) with Pintar Asiamas Sdn Bhd (the Landowner). The 2nd Respondent and Landowner agreed to develop Lot 40481, Mukim Hulu Kinta, Daerah Kinta. The 11 acres of land were alienated by the State Government of Perak to develop a housing scheme with 116 terrace housing lots.

[5] Syed was appointed as the advocate and solicitor and witnessed the execution of the JVA between the parties as well as the Power of Attorney (PA) granted by the Landowner to the 2nd Respondent. By a letter dated 17 March 2014, the Landowner unilaterally terminated the JVA. This termination was disputed by the 2nd Respondent claiming that it was able and willing to perform the obligations to develop the land.

[6] The 2nd Respondent subsequently discovered that the Landowner who had agreed under the terms of the JVA not to sell the land to any third party had in fact entered into a sale and purchase agreement (SPA) dated 9 October 2013 to sell the land to Ken Han Sdn Bhd. This was in contradiction with the obligation of the Landowner under the terms of the JVA which prohibited any sale, transfer, and conveyance of the land when the JVA still subsists. The said SPA was prepared by Syed's firm and Syed himself had witnessed the execution of the agreement.

[7] Syed denied he had acted for any party to the JVA and claimed that he was not even privy to the terms of the JVA. His role according to him was merely to witness and attest to the execution of the JVA and PA.

[8] Unhappy with the conduct of Syed, the 2nd Respondent lodged a disciplinary complaint with the DC on 4 October 2016. The 2nd Respondent alleged that Syed had acted in a conflict of interest and conspired to defraud the 2nd Respondent by preparing both the JVA and SPA concerning the same piece of land. When the SPA was prepared, the JVA was still valid and subsisting.

[9] The DC conducted an inquiry on 21 February 2018 as required under the LPA . In its report dated 28 March 2019, the DC found Syed guilty of having acted in a conflict of interest in the discharge of his professional duties as an Advocate and Solicitor and made a finding on liability. Syed had indeed played a major role in the preparation of the JVA. Therefore, any action on t