JUDGMENT

Mohd Ghazali J:

[1] The appellant in this matter has appealed to this court against the decision of the Disciplinary Committee ('DC') - appointed by the Chief Justice, Malaya (as the Chief Judge, Malaya was then known) on 26 February 1990 under the then s 99 of the Legal Profession Act 1976 ('LPA') - wherein it was ordered that he be censured.

[2] The background to the matter is as follows:

[3] By a letter dated 4 December 1989, the respondent in this matter, LM Ong & Co, Johor Bahru, a firm of advocates and solicitors, made a complaint against the legal firm of Gana Muthusamy & Co, Johor Bahru to the Bar Council pursuant to the then s 95 of the LPA. The gist of the complaint was that Gana Muthusamy & Co had appropriated a sum of $520 for mesne profits and had issued a receipt for the same, when it was tendered as payment for rental and their subsequent refusal to remedy the situation despite several requests by the respondent.

[4] The statement of complaint by the respondent is as follows:

(a) The appellant acted for one Sharifah Zainah bte Hassan Alattas who was the plaintiff in Johor Bahru Sessions Summons No 52-29 of 1989 and the respondent acted for the defendant, one Heng Ee Fong (hereinafter referred to as the "plaintiff" and "defendant" throughout, respectively).

(b) The action is basically a landlord and tenant action in which the claim of the plaintiff against the defendant is for, inter alia, vacant possession of a certain rent-controlled premises which the defendant is alleged to have failed and/or refused to pay the plaintiff the monthly rent of $500 for. There is also a claim for mesne profits.

(c) The defence of the defendant is basically that of tender of the actual monthly rental of $280 which the plaintiff is alleged to have had continually rejected.

(d) Whilst the action was still pending, the respondent had by their letter to the appellant dated 30 March 1989 tendered the defendant's cheque for $520 for payment of the rental for the said premises for the months of April and May 1989.

(e) The appellant paid in the said cheque but issued their receipt dated 7 April 1989 describing the said payment as "mesne profits on account of JB M/CT S/No 52-29/89" instead of rental for the said premises for April and May 1989 which it was supposed to be and had been tendered as. This receipt was forwarded to the respondent under cover of the letter of the appellant's firm dated 18 April 1989.

(f) There is no order in the Sessions court matter or in any other action for the payment by the defendant to the plaintiff of any mesne profits or any monies whatsoever.

(g) Nothwithstanding the numerous demands of the respondent on the appellant's firm to amend their said receipt to correctly describe the said payment as the rental aforesaid or failing which to refund the said payment to the defendant, it being his cheque, the appellant's firm had failed and/ or refused to do so.

[5] The DC found that the respondent did in fact send the said sum of $520 for purposes of rental whereas the appellant appropriated the sum for mesne profits and issued a receipt for the same. The DC noted that the respondent had on four (4) previous occasions forwarded the said sum as rentals and the appellant's firm has returned the same on each occasion.

[6] On the whole, the DC found that the appellant "has by appropriating the sum of $520 for a purpose other than that it has been tendered for has committed a breach unbecoming of a Solicitor but such breach not deriving out of dishonesty does not warrant serious convictions" and consequently made the following order:

Accordingly, pursuant to s 101 of the Legal Profession Act, 1976the Disciplinary Committee hereby orders that:

(a) the Respondent be censured;

(b) there be no order as to costs.,

and hence this appeal.

[7] At the outset of the hearing of this appeal, the appellant conceded that he was procedurally wrong as his appeal should have been made by motion in accordance with O 55 r 13 of the Rules of the H