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JUDGMENT
Background Facts: Before The Disciplinary Board
[1] The appellant was previously practising as an advocate and solicitor under the name and style of Messrs Murthy Song & Partners, Kuala Lumpur.
[2] The appellant acted for the 1st respondent as solicitor in her insurance claim arising from the death of her late husband. The claim was settled and the settlement sum was paid to Universal Trustee (Malaysia) Berhad. On instructions from the appellant, the respondent withdrew part of the settlement sum amounting to RM800,000.00 to be deposited into a bank account.
[3] The appellant then borrowed RM600,000.00 from the 1st respondent with a promise to pay her interest of RM6,400.00 amonth commencing April 2005. The appellant confirmed that he took the loan and had paid interest and refunded a sum of RM100,000.00 when requested but ceased to pay monthly interest from August 2008 as he had financial difficulties.
[4] In June 2010, the 1st respondent lodged a complaint against the appellant under the
[5] In its recommendations in the report, the DC was of the view that at the time the sum of RM600,000.00 was paid to the appellant, the 1st respondent was no longer a client of the appellant, hence there was no solicitor-client relationship in existence. Nevertheless bearing in mind that the 1st respondent still relied on the appellant for advice in handling her monies, the appellant still had influence over the 1st respondent and the appellant should have asked her to obtain legal advice from another solicitor before entering into the Loan Agreement. By failing to ask the 1st respondent to seek legal advice before signing the Loan Agreement, the appellant had failed to conduct himself in a professional manner, knowing full well that there was a conflict of interest since he was a borrower and at the same time, a former solicitor to the 1st respondent who had trusted him. Nonetheless, failure to repay the loan was a purely civil matter which the 1st respondent had to seek recourse through the court.
[6] The DC recommended to the Disciplinary Board (DB) that the respondent be fined a sum of RM1,000.00 for professional misconduct in failing to advise the 1st respondent to seek legal advice before signing the Loan Agreement. The DB upheld the finding of misconduct but increased the fine to RM50,000.00.
In The High court
[7] Being aggrieved with the decision of the DB, the appellant filed an originating summons (OS) for the following orders that (i) the decision in order of the Disciplinary Board and/or the Disciplinary Committee against the plaintiff/appellant on 15 April 2017 be set aside; and (ii) that the penalty of the fine of RM50,000.00 be set aside.
[8] The grounds for the OS application were as follows: (1) the DC and/or DB in deciding that the appellant ought to have advised the 1st respondent to seek independent advice was never a complaint to the DB; (2) it was not open to the DB to undertake an enquiry on matters which were not the subject matter of the complaint; (3) the appellant was not given any opportunity to explain as to why he was not required to proffer unsolicited advice to the 1st respondent before she signed the Loan Agreement; (4) the DB had acted disproportionately to the nature of the complaints and in all circumstances of the case when imposing a fine of RM50,000.00; and (5) there had been a breach of the rules of natural justice.
[9] In her decision, after referring to the facts of the case, the learned High court Judge was of the opinion that the appellants main complaint was that by substituting a fresh act of misconduct from the original charge that the DC had committed a juri
