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DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
DI DALAM NEGERI JOHOR DARUL TA'ZIM
USUL PEMULA NO: (MT-5) 17-40-2009
Dalam Perkara Seksyen 103D dan
103E, Akta Profesion Undang-Undang
1976 (Akta 166)
Dan
Dalam
Perkara
Kaedah-kaedah
(Prosiding-prosiding
Tatatertib)
(Rayuan) (Profesion Undang-Undang
1994)
Dan
Dalam Perkara Jawatankuasa Tatatertib
Lembaga Tatatertib Peguam-Peguam
Aduan No. DC/07/2954
Dan
Dalam Perkara Aturan 92 Kaedah 4,
Kaedah-Kaedah Mahkamah Tinggi 1980
ANTARA
TAN TEM SON
(No. K/P: 3221577)
…PERAYU
DAN
NOR AIDA BINTI ISMAIL
(No. K/P: 721211-14-5518)
…RESPONDEN
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail
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DI DALAM KAMAR
DI HADAPAN Y.A. DATO' HUE SIEW KHENG
PESURUHJAYA KEHAKIMAN
DECISION
1.
This appeal is against the decision of the Disciplinary Board (“DB”) of
the Bar Council of Malaysia dismissing the appellant’s complaint
against the respondent.
2.
The summary of the complaint as found by the Disciplinary
Committee (“DC”) is as follows:
i)
The complainant who was the subject of a bankruptcy action
filed an application to set aside the proceedings alleging that
the respondent in her affidavit had deposed falsely and
exhibited an affidavit of non-service together with a tampered
and doctored proof of service thereby misleading the court and
jeopardizing the complainant’s position and application.
3.
The background facts of the complaint are set out in greater detail in
the appellant’s Written Submission.
4.
The findings of the DC are set out below:
The Disciplinary Committee finds that the respondent is a truthful witness
and answered all questions put to her by counsel and by the Committee
candidly.
She had no personal or pecuniary interest in the matter. The documents
affidavits etc were all prepared by the clerical pool and as an assistant she
affirmed and presented same to the Court. It was a formal application for
substituted service.
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail
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As for conduct of an Advocate & Solicitor S.93(2)(b) of Legal Profession
Act 1976 reads:
“Dishonest conduct in the discharge of his professional duty
or fraudulent conduct or conduct otherwise unbefitting an
advocate and solicitor”
We do not find that the Respondent’s conduct fall within this section.
Members of the Bar in the course of practicing their profession rely on
their supporting staff and clerical hands to undertake the dispatch posting
and the like and members cannot be expected to do beyond that which is
reasonable expected of them.
Based on Bhandari’s case approved in Keith Sellar vs Lee Kwang [1980] 2
MLJ Page 191 we took the view that the Respondent cannot be
condemned on mere suspicion or speculation. We do not find that she
was dishonest in the discharge of her professional duties. We do not find
her conduct unbecoming or unprofessional in any way.
5.
The appellant contends that the DC considered irrelevant facts and
thus arrived at the wrong decision.
6.
The wrong findings includei)
the respondent is only a legal assistant and does not have
exclusive access to the bankruptcy file in question.
ii)
the respondent has no personal or pecuniary interest in the
matter.
iii)
the documents affidavits etc were all prepared by the clerical
pool and as an assistant she affirmed and presented the same
to court; and
iv)
members of the Bar in the course of practising their profession
rely on their supporting staff and clerical hands to undertake the
dispatch posting and the like and members cannot be expected
to do beyond that which is reasonably expected of them.
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail
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7.
Learned counsel for the appellant has addressed each and every
finding thoroughly in Part C of his Written Submission.
8.
The respondent on the other hand submits that for the appellant to
succeed in this appeal the appellant needs to prove that there was
clear misconduct on her part.
9.
The respondent argues that the standard of proof to establish
misconduct against her is that of “beyond reasonable doubt” (see
Keith Sellar v Lee Kwang and Tennakoon v Lee Kwang [1980] 2 MLJ
191).
10.
The respondent further contends that the DC in making their findings
had applied the correct test as enunciated in Keith Sellar in holding
that the respondent could not be condemned on mere suspicion or
speculation - therefore the respondent was not dishonest in the
discharge of her professional duties.
11.
I agree that there is no credible evidence to prove that the respondent
had personally tampered with the exhibit labeled “NAI-2” in her
affidavit in reply in resisting the appellant’s application to set aside the
bankruptcy proceedings.
12.
However I find, with respect, the respondent and the DC appear to
have intentionally or otherwise, missed the point in issue: the
respondent had sworn on oath an affidavit in which she had declared
in para (2)Segala fakta yang didepos di sini adalah berdasarkan pengetahuan
saya sendiri dan/atau dari rekod-rekod dan/atau suratcarasuratcara Pemiutang Penghakiman yang saya boleh akses
melainkan jika dinyatakan sebaliknya dan kesemuanya adalah
benar.
(emphasis added)
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail
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13.
In para 5 she had gone on to affirm as follows:
(c) Perintah Lanjutan Pertama tersebut, Perintah Lanjutan Kedua
tersebut dan Perintah Lanjutan Ketiga dan Penyampaian Ganti
tersebut telah dibuat mengikut undang-undang dan adalah
teratur. Saya menegaskan, secara alternatifnya, bahawa
Afidavit Tanpa Serah Norfadilah Aziz tersebut adalah
mengikut kehendak undang-undang kerana surat temujanji
telah pun dikemukakan sebagai bukti dan sesalinan bukti
kiriman pos untuk surat temujanji tersebut dikemukakan di
sini dan dijadikan eksibit “NAI-2”.
14.
She reiterated in sub para (e) thatSaya bertegas menyatakan bahawa penyerahan Notis
Kebankrapan tersebut adalah mengikut proses undang-undang
kebankrapan dan adalah teratur seperti yang dinyatakan di atas.
15.
However, as was revealed at the DC, what she had sworn in her
affidavit was not true.
16.
She had clarified in her Letter of Explanation (“LE”) the posting
system in her office and said that the proof of posting for the letter of
appointment dated 17.12.2002 was already available in the file by the
clerk in the posting department.
17.
She went on to say in para 5 of LE:
5.4
It was always within my knowledge that letter of appointment
dated 17.12.2002 was issued out by registered post and due
to the same, I always believe that the form entitled “Kiriman
Banyak Barang-Barang Berdaftar” that I exhibited as “NAI-2”
in my Affidavit was the correct and/or true copy of proof of
posting for the letter of appointment dated 17.12.2002
photostated from the original copy.
5.5
It is very important to state here that at all material times, I
had no exclusive access to the File nor was I the sole
solicitor in charge of the File. The File could be accessed by
other employees of the Firm, such as other legal assistants,
partners and clerks.
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail
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18.
It is disturbing to say the least that the DC should find her blameless
on the ground, inter alia, that the documents, affidavits etc were all
prepared by the clerical pool and as an assistant she merely affirmed
and presented the same to the court. Is the DC implying that a
legally qualified person like the respondent is there merely to rubber
stamp whatever is prepared by the clerical pool? With respect, the
respondent is duty bound, in affirming the affidavit, or any affidavit for
that matter, to ensure the authenticity and veracity of any exhibits
contained therein. Otherwise, what is the significance or the need for
her affirmation in para 2 of the impugned affidavit?
19.
This applies to all affidavits, whether it is an affidavit in support of a
“mere” formal application for substituted service or otherwise. The
law makes no distinction with regard to the requirement for verifying
and deposing to the truth of any matter in any affidavit.
20.
In my view it is not material here whether members of the Bar rely on
their support staff and clerical hands to undertake the dispatch
posting and the like because the issue here is in respect of the
respondent’s failure to ensure the veracity and authenticity of the
contents of the exhibit in the impugned affidavit.
21.
From the findings of the DC and the admission of the respondent
herself I find there is clear and uncontroverted evidence that she
failed to verify the truth of the contents of her affidavit and authenticity
and veracity of ex. “NAI-2”.
22.
Rule 17 of the Legal Profession (Practice and Etiquette Rules) 1978
provides thatAn advocate and solicitor shall not practice any deception on the
court.
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail
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23.
I concur with the appellant that by allowing the tampered ex. “NAI-2”
to remain as evidence of truth after knowing the same to have been
tampered with, the respondent had practiced deception on the court.
She willfully chose not to file any corrective affidavit to bring to the
court’s attention that the order for substituted service was procured
on the strength of a doctored exhibit, despite the fact that it was
brought to her attention by the appellant’s counsel.
24.
She had justified her failure to file a corrective affidavit on the
grounds that she was leaving the firm soon and she was instructed by
her employer not to do so and she did not want to be insubordinate.
25.
Rule 16 imposes a duty on an advocate and solicitor to fearlessly
uphold the interest of his client, the interest of justice and dignity of
the profession without regard to any unpleasant consequences either
to himself or to any other person.
26.
In this case, the respondent had failed miserably in her duty to uphold
the interest of justice and the dignity of the profession by bowing to
the wishes of her employer and her own personal self interest and
had, in doing so, willfully and knowingly practiced deception on the
court.
27.
The decision of the DB in adopting wholesale the findings of the DC
that there is no misconduct here and that no cause of sufficient
gravity exists for further action is manifestly wrong and cannot be
sustained. With respect, I do not think that this reflects the best
thinking of the members of the legal profession.
28.
I am mindful that the Court of Appeal in Gana Muthusamy v L M Ong
& Co. [1995] 3 MLJ 341 advised that courts must exercise caution in
appeals like this in which the central question is whether a particular
conduct is unprofessional. I am of the firm view that this case merits
curial interference because the respondent, in failing to take
immediate corrective steps to bring to the court’s attention that the
order for substituted service was obtained based on an exhibit that
was tampered with was acting in flagrant and wanton disregard of her
duty not to practice deception on the court.
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail
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29.
I find the respondent guilty of conduct which is unbefitting of an
advocate and solicitor pursuant to section 94(3)(0) of the Legal
Profession Act 1976 and in the circumstances, it is hereby ordered
that a reprimand be recorded against the name of the advocate and
solicitor pursuant to section 100(8)(a) of the said Act.
The appeal is allowed with costs.
(DATO’ HUE SIEW KHENG)
Judicial Commissioner
High Court Malaya
Johor Bahru
DATE:
12 MARCH 2010
KAUNSEL
En. Wu Tern Yue – Tetuan Wu & Co., Peguambela & Peguamcara, Johor Bahru.
[Ruj: WTY/L/0779/0905] – bagi pihak perayu.
Cik Aida bt Ismail – Tetuan Abdullah & Maznah, Peguambela dan Peguamcara, Johor
Bahru. [Ruj: AM/L/2750/09/AI] – bagi pihak responden.
MT5-17-40-09/TanTemSon/k.12.3.10/DHSK/zj
JB-MT5-17-40-09/Tan Tem Son v Aida Ismail