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JUDGMENT
Applications
[1] There are two applications before this court:
(i) WA-17D-13-05-2017 - the appellant, Song Teik Kim's application for an order that the decision of the Disciplinary Board and/or Disciplinary Committee against him dated 15 April 2017 be set aside and that the penalty of RM50,000.00 be set aside.
(ii) WA-17D-21-07-2017 - the appellant, Lina Anak Dimbat's application for an order of restitution against the respondent, Siong Tek Kim.
[2] In respect of Originating Summons WA-17D-13-05-2017, the appellant's grounds of appeal are as follows:
(i) the Discipline Committee and/or Disciplinary Board in deciding that the appellant ought to have advised the Complainant to seek independent advice was never a complaint to the Disciplinary Board;
(ii) it is not open to the disciplinary board to undertake an enquiry on matters which were not the subject matter of the complaint;
(iii) the appellant was not given any opportunity to explain as to why he was not required to proffer unsolicited advice to the complainant before the complainant signed the loan agreement;
(iv) the Disciplinary Board had acted disproportionately to the nature of the complaints and in all circumstances of the case when imposing RM50,000.00; and
(v) there had been a breach of natural justice.
[3] Having considered both applications and the submissions of the parties, this court had dismissed both applications with no order as to costs.
[4] The Notice of Appeal filed is in respect of WA-17D-13-05-2017, and therefore these grounds are limited to this case alone.
The Salient Facts
[5] The appellant, Siong Teik Kim was previously practising as an advocate and solicitor under the name and style of Messrs Murthy Song & Partners at No 18, Jalan Bawang, Taman Cheras, Kuala Lumpur.
[6] The appellant had acted for the respondent in her insurance claim, arising from the death of her husband. The insurance claim was settled and the full settlement sum of RM800,000.00 was paid to Universal Trustee Berhad.
[7] On the instruction of the appellant, the respondent wrote to Universal Trustee Berhad to withdraw the RM800,000.00.
[8] Upon receipt of the money, the appellant then proceeded to borrow RM600,000.00 from the respondent. A loan agreement was signed by the appellant and the respondent on 11 March 2005. The appellant did not deny receiving RM600,000.00 and had repaid the respondent a sum of RM100,000.00.
[9] Around June 2010, the respondent lodged a complaint with the Intervener, the Bar Council Malaysia under the
[10] On 14 June 2013, the Disciplinary Board ("DB") appointed the Disciplinary Committee ("DC") to hear the respondent's complaint. From the DC 'Record of Investigation Proceedings', the DC had summarised the complaint to be as follows:
"The Complainant was a client of the Respondent in her insurance claim for the death of a late husband. Part of the settlement sum amounting to RM800,000.00 was kept with Universal Trustee (M) Sdn Bhd.
The Respondent requested the Complainant to lend him a sum of RM600,000.00 and promised to pay the Complainant monthly interest of RM6,400.00 a month commencing April 2015.
The gist of the complaint is that the respondent stopped paying interest after April 2008 and still owes the Complainant the principal sum of RM500,000.00 which remains unpaid till the date of Hearing of the complaint."
[11] The DC heard the complaint on 2 September 2013 and after hearing both parties, the DC, inter alia, made the following recommendation to the DB:
"The committee is of the view that at the time the sum of RM600,000.00 was paid to the respondent by the Complainant, she was no longer a client of the respondent, hence there was no solicitor-client relationship in existence.
Nevertheless, bearing in mind, that the Complainant still relies on the Respondent for advice in handling her monies, the Respondent still has influence over the Complainant and the respondent should have asked the Complainant t
