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2014 MarsdenLR 1116
COURT OF APPEAL PUTRAJAYA
KOH MUI TEE – Appellant
Versus
CHIN LEE & ORS – Respondent
[Civil Appeal No: W-02-857-2011 & W-02-858-2011]
Disciplinary proceedings under the Legal Profession Act must appropriately balance the findings of misconduct and the proportionality of penalties to ensure fairness and public confidence in the legal profession.
Headnote:(A) Legal Profession Act 1976 (Act 166) - Sections 93, 94(3), 103E, and 116 - Disciplinary proceedings against an advocate for misconduct - Misconduct defined as conduct or omission that amounts to grave impropriety including charging grossly excessive fees and bringing the profession into disrepute - Penalty of RM10,000.00 upheld by Disciplinary Board, dismissed by High Court, replaced with 6 months suspension due to context of misconduct. (Paras 3, 5, 7, 78)
(B) Disciplinary procedure - Requires findings on oath for testimony and adherence to procedural timelines, but extensions can be granted - Noncompliance in appointing tribunal does not invalidate proceedings without demonstrable injustice. (Paras 16-28)
(C) Integrity of fee agreements - Allegations of financial misconduct examined against evidence and conduct standards; an agreement on fees with a client must not involve misrepresentation or dishonesty among solicitors. (Paras 34, 42, 83)
Facts of the case:
Appellant's appeal against the High Court's dismissal of application challenging liability and penalty imposed by the Disciplinary Board due to allegations of charging excessive fees without a formal fee agreement. (Paras 2, 5)
Findings of Court:
Disciplinary Board's findings of misconduct were validated by precedent and not overturned; High Court determined the imposed penalty inadequate, increasing it to address the disproportionality of the fees charged in relation to the misconduct. (Paras 7, 84)
Issues: Appellant contested the finding of misconduct, validity of fee agreement and procedural errors in the disciplinary process; key determinations on appropriateness of penalties in professional misconduct. (Paras 6, 15, 19)
Ratio Decidendi: The court reaffirmed that disciplinary bodies have the authority to determine fees and misconduct; penalties for professional misconduct must act as a deterrent and reflect the severity of the actions taken rather than simply being financial statements. (Paras 80, 84)
Result: Appeals and cross-appeals dismissed; the penalty of six months suspension is upheld.
| Table of Content |
|---|
| 1. civil appeals against disciplinary board decisions (Para 1 , 2 , 3 , 4) |
| 2. overview of appeal grounds and basis (Para 5 , 6 , 8) |
| 3. disciplinary proceedings timeline and context (Para 9 , 10 , 11) |
| 4. testimony in disciplinary proceedings is essential (Para 15 , 16 , 17 , 18) |
| 5. delays in disciplinary committee processes analyzed (Para 22 , 23 , 24 , 25) |
| 6. report recommendations of investigating tribunal (Para 29 , 30 , 31) |
| 7. jurisdiction of disciplinary committee clarified (Para 32 , 33 , 34) |
| 8. standard of proof for misconduct (Para 42 , 44) |
[1] Civil Appeals W-02-857-2011 and W-02-858-2011 were heard together.
[2] Civil Appeal W-02-857-2011 is an appeal by Koh Mui Tee, the Appellant herein, against the decision of the High COURT on 24 November 2011 dismissing his application in Originating Motion No. R3(R2)-17-75-2010 against liability and penalty imposed and for various orders against the decision made on 23 July 2010 by the Disciplinary Board set up under s 93 of the Legal Profession Act 1976 (Act 166).
Civil Appeal W-02-857-2011
[3] The Disciplinary Board had on 23 July 2010 agreed with the finding by the Disciplinary Committee of misconduct, which term is defined in s 94(3) of Act 166 to mean conduct or omission to act in Malaysia or elsewhere by an advocate and solicitor in a professional capacity or otherwise which amounts to grave impropriety, and which includes, in respect of the Appellant, under s 94(3)(m) and (o) of Act 166 the following conduct:
(m) the charging, in the absence of a written agreement, in respect of professional services rendered to a client, of fees or costs which are grossly excessive in all the circumstances;
(o) being guilty of any conduct which is unbefitting of an advocate and solicitor or which brings or is calculated to bring the legal profession into disrepute.
[4] The Disciplinary Board imposed a fine of RM10,000.00.
[5] Dissatisfied with the decision of the Disciplinary Board, the Appellant filed an appeal to the High COURT by way of an Originating Summons R2-17-75-2010 pursuant to s 103E of Act 166 on 3 September 2010. The appeal, as amended on 13 October 2010, sought orders to set aside the findings and the penalty imposed on grounds which may be summarised as follows:
(a) There is no merit in the complaint;
(b) The complaint is scandalous, frivolous or vexatious, and otherwise an abuse of theprocess of the COURT;
(c) The report and recommendations of the Investigating Tribunal dated 6 April 2007 that a formal investigation is not necessary is correct;
(d) Disciplinary proceedings of the Disciplinary Committee on 9 September 2009 is null and void;
(e) The Disciplinary Committee erred when it made the finding that there was merit in the complaint and recommended that the Appellant be suspended from practice for 6 months;
(f) The Disciplinary Board erred in affirming thefindings of the Disciplinary Committee on liability; and
(g) The Disciplinary Committee erred in imposing a penalty of RM10,000.00, which ought to be set aside or reduced.
[6] The findings of fact of the Disciplinary Committee and the Disciplinary Board pertain to a disputed fact as to whether the complainant had agreed to pay a contingency fee of 25% of the market value of the property. The versions are as follows:
(a) Complainant's version: that the agreed legal fee was RM30,000.00, that it was paid, and when the complainant signed the letter of appointment:
i) the complainant had not agreed to a fee amounting to 25% of the market value of the subject property; and
ii) the space for contingency fee, which now shows the 25%, had been left blank.
(b) Appellant's version: the 25% fee was agreed to in the letter of appointment.
[7] The grounds of judgement dated 20 April 2011 of the High COURT show that the learned Judge addressed her mind to the findings by the Disciplinary Committee and the Disciplinary Board, and taking into consideration the facts of the case as well as the generally accepted principle that the COURT would not
