ADR – Case Review (Week 8)

1. Teoh Hooi Leng v Bar Council, Malaysia 1991 [SC]

Issue: Whether allowing the application of the appellant in restoring the roll of
A&S was reasonable.

Facts: The Appellant was charged with two counts of criminal breach of trust
of$ 99,240 under s 409 of the Penal Code. He pleaded guilty to the charges
and was sentenced to 18 months' imprisonment. However, on appeal, the
sentence was reduced to three months' imprisonment and a fine of $ 2,000.
He served the sentence and paid the fine. Due to his misconduct, as accordance
to LPA, his roll was struck off. But later he has served his sentenced and started
working again as a legal advisor, in 1979, he applied for his roll to be restored
under section 107 (1). HC rejected the application as the appellant had not
discharged the onus that he was a 'fit and proper person' and that he had not
shown exceptional circumstances. however, it was overruled in Supreme Court.

Held: Supreme court overruled and restored the role.

Ratio: A person in the position of the appellant is in a sense put in a more

disadvantageous position than an ordinary applicant seeking for admission into
the roll because in seeking for restoration to the roll he must satisfy the court
not only that he is a fit and proper person to be restored but must displace the
possible permanent unfitness which was the basis of his removal. The onus is
on him to prove.

1. Must be fair to the profession and to his colleagues in the profession.

The appellant here produced several letters from senior members of the
legal profession exhibited at pp 72-77. The Bar Council in its letter at p 79
of the appeal record stated that it would not object to the application.

2. There is no evidence that the appellant has committed any irregularity

during the last 14 years. The lapse of 14 years from the date of the breach
to the date of the application was a factor in favour of the appellant.

3. A reasonable decision must first of all be supported by cogent evidence and

not one based on conjecture or speculation.
2. Bar Council Malaysia v Sarjit Kaur D/O Tharam Singh

Issue: Whether the DC has the ultimate power to struck off the role of an A&S

Facts: Disciplinary Committee (DC) contended that the respondent had sold the
complainant’s property without her consent and/or knowledge. In high court, the
judge erred of the fact that respondent was aware of and had responded to the
allegations levelled against her and The Disciplinary Board had requested for an
explanation from the Respondent in respect of the letter of complaint dated 10-
10-2013 which contained the allegations of misconduct against the Respondent.

Held: The appeal was allowed. The High Court order is set aside and the DB decision
is reinstated.

Ratio: Court will not interfere with matters of professional discipline. The only caveat
to this general principle of non-interference with the DB decision is related to
sentencing. If the proportionality principle is breached and there is a specific
complaint before the High Court in relation to the proportionality principle, the High
Court is obliged to consider it and if it deems fit, the court could set aside the order of
the DB and/or order the matter to be sent back to the DB or DC for proper
consideration. And the complaint mentioned was not related to proportionality
principle
3. Pushpam Subramaniam v. Majlis Peguam Malaysia & Anor 2006 [HC]

Issue:

Facts:

Held:

Ratio: