JUDGMENTBY: EDGAR JOSEPH JR SCJ (DELIVERING THE JUDGMENT OF THE COURT)

This appeal revolves around the question whether the provisions as to time as set forth in ss 98 and 99 of the Legal Profession Act 1976 (the Act) in the form that it took prior to its amendment by the Legal Profession (Amendment) Act 1992, being Act A 812, which came into force on 1 April 1992 by virtue of Legal Notification 117 dated 9 March 1992, are mandatory or directory.

In this judgment all references to section shall, unless the context otherwise requires, be to the Act.

Upon an application by originating summons taken out by the plaintiff, Encik Joseph Au Kong Weng, an advocate and solicitor, against whom a complaint by the then secretary to the Bar Council, under s 95(1) of the Act had been made, alleging misuse of his firms trust account, citing the Bar Council, states of Malaya, and the members of a disciplinary committee appointed by the Chief Justice under s 99, consequent thereto, namely Messrs Harbans Singh Bhal, Lee Kwong Wah and Dato Mohd Amin bin Mohd Daud, as the first, second, third and fourth defendants, respectively, Eusoff Chin J (as he then was) decided that the provisions as to time were mandatory, and that consequently, on the facts before him the appointment of the disciplinary committee was invalid, null and void, and from that decision the defendants have appealed to this court.

We were told at the outset of this appeal that the question arising for decision on this appeal is of great importance to the public and to the legal profession, as our decision would affect a very large number of complaints now pending under the Act, one way or another.

To put matters in their correct perspective, it is first of all, necessary to refer to the procedure prescribed by the Act which govern complaints under it; so far as material to the present appeal, it is as follows:

A complaint may be made against an advocate and solicitor, a pupil or an article clerk and must be made to the Bar Council (s 95).

The Bar Council must refer every complaint to the relevant state bar committee for investigation (s 95(3)).

The state bar committee to whom the complaint has been referred must then investigate the complaint regardless of its merits (s 96(1)). In doing so, it is required to:

(a) prepare a written statement stating out the substance of the

complaint;

(b) give notice to the advocate and solicitor concerned of not less

than 14 days--

(i) to furnish a written explanation; and

(ii) to advise the state bar committee if he wishes to be heard

by them;

(c) give the advocate and solicitor concerned a reasonable

opportunity to be heard.

The state bar committee is allowed the space of three months to fulfill its duties under the Act (s 96(2)).

At this point we would interject to refer to the practical problems which confront the state bar committee in fulfilling its duties under the Act; they are set forth in an affidavit dated 23 October 1990 affirmed by Dato Peter Mooney, the chairman of the complaints committee, of the Bar Council and are as follows:

7 State bar committees are composed of members of the Bar who, like

members of the Council, are all volunteers, are prepared to give time

and effort without reward to the service of the Bar and the public.

They normally meet once a month. Any complaint arriving from the Bar

Council has to wait the first meeting thereafter and accordingly:

(1) there may be an interval of up to a month before the state bar

committee sees the complaint;

(2) thereafter, it has to decide whether the complainant is likely to

be frivolous or vexatious. If it is, then the committee has to

write to the complainant for a deposit and await this before

taking the next step;

(3) it then has to prepare a written statement setting out the