JUDGMENT

Abdull Hamid Embong J:

Background:

On 2 December 1996, the respondent lodged a complaint against the appellant, their solicitor. The respondent, a property developer, had earlier retained the firm of Jerald Gomez a associates as their solicitor to negotiate for them in the purchase of a bungalow in Bangsar. The complaint was essentially for acting in conflict of interest, negligence and overcharging by the appellant.

The investigating tribunal constituted to investigate this complaint recommended to the disciplinary board that a formal investigation be conducted only in respect of the complaint against overcharging. On 22 August 2002 the disciplinary committee found the appellant guilty of the overcharging charge and recommended that the appellant be fined RM3,000. On 11 October 2002 the disciplinary board imposed the said penalty which the appellant duly paid. The appellant on 1 November 2002 lodged an appeal to this court pursuant to s. 103E of the Legal Profession Act 1976 ("LPA").

At the outset of this hearing before us on 8 September 2005, Cik Fauziah Mustaffa for the respondent intimated that she would not make any submission. The Bar Council ("the Intervenor") was given leave to intervene in these proceedings on 18 February 2002.

Raja Aziz Addruse, of counsel for the appellant, alluded to the natural justice point in his written submission and requested that that issue be heard before the merits of the case, for if the appellant succeeded on that substantive ground, the appeal could be allowed forthwith. The court acceded to counsel's request.

The natural justice issue

Learned counsel for the appellant raised two points. Firstly it was submitted that the disciplinary board was in breach of the rule of procedural fairness when it refused to accede to the appellant's request to be supplied with the notes of proceedings of the investigating tribunal which the disciplinary committee had referred to at its hearing. It was not in dispute that at the disciplinary committee stage these notes were referred to and questions from it were asked of the appellant. In reply Mr. Robert Lazar for the Bar Council stated that the appellant was fully aware of the exact charges against him and that no prejudice had occurred. Counsel referred to r. 16 of the Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994 which states that "The Investigating Tribunal shall make a record of the proceedings before it" and submitted that there was no requirement for those notes to be furnished to the appellant. In fact the appellant was present with his solicitor throughout the entire proceedings at the Investigating Tribunal and Disciplinary Committee and had taken down his own notes. As such there was no breach of natural justice.

This court agreed with learned counsel for the appellant on this point. The case of Rohana Bte Ariffin A Anor v. Universiti Sains Malaysia [1988] 2 CLJ 390 (Rep); [1989] 1 MLJ 493 was cited, in particular the following passage in the judgment of Edgar Joseph Jr. J:

It is a well-established principle of administrative law that anything that restricts, or appears to restrict, the defendant's ability to present his case may be held to be a breach of procedural fairness and, thereby, susceptible to judicial review; for example, a defendant is generally entitled to notice of evidence that might assist his case. It is, therefore, a breach of natural justice for the prosecution to conceal such evidence: R v. Leyland Justices, ex p Hawthorn [1979] QB 283.

A similar principle, founded on the need for fair play, may be extracted from the advice of the Privy Council in B. Surinder Singh Kanda v. Government Of The Federation Of Malaya [1962] 28 MLJ 169 where it was held that:

(2) The right to be heard carries with it the right of the accused to know the case made against him, the evidence given and the statements made affecting him; and he must be given a fair opportunity to c