Monday, July 22, 2019



Referring to current matter decided by Federal Court in MAJLIS PEGUAM v. CECIL WILBERT MOHANARAJ ABRAHAM [2019] 3 MLRA 515

Held (dismissing appeal with no order as to costs):
(1) It is trite law that in interpreting or construing any document, as in the letter of complaint, in this case, to obtain the intent and purpose of the same, courts must read that document in its entirety. Taking that approach, the letter of
complaint was a complaint meeting the requirement of s 99(1) of the LPA. The reason being, firstly, complaints made under the LPA are made by lay people who are not very well versed to legalism. Thus, taking a narrow and strict interpretation in construing a complaint letter would defeat the purpose of the
LPA which undoubtedly is a piece of legislation aimed to ensure complainants' access to justice is not unduly hampered. Secondly, the heading of the said letter reads like a letter of complaint which goes to show that the only intent of
writing the letter is to make a complaint relating to the alleged misconduct of the respondent. Thirdly, a reasonable reading of the letter of complaint and the manner in which the complaint was framed leaves no doubt that the complaint against the respondent is simply that he would be liable for misconduct within the meaning of s 94(3) of the LPA if, after the appropriate inquiry is made, he is found to have committed all the alleged acts listed in the letter of complaint. The Court of Appeal erred in taking up or dealing with the issue of whether
the letter of complaint amounted to a complaint in the context of the LPA. There was no appeal by the respondent, neither a cross-appeal on this issue at the Court of Appeal. (paras 29-33)

(2) In disciplinary proceedings in the context of the LPA, the burden is on the appellant to prove what is alleged in the complaint and the standard of proof is one of beyond reasonable doubt similar to that of in the realm of criminal
law. That being the case, the respondent, like an accused in a criminal trial, is fully entitled to call upon his armoury of defence available in law to protect himself against the allegation made. Here the respondent invoked the privilege
of solicitor-client which, any solicitor and advocate would normally and is fully entitled to invoke if it relates to queries concerning work done by the firm of the solicitor and advocate and in this case, Zul Rafique & Partners of which the respondent is a partner. Hence, there was no error on the part of the Chairman of the DC, though initially found puzzling, in accepting the respondent’s reliance on solicitor-client privilege when it was explained to him that the respondent’s firm had given advice on SD2 which warranted invoking the solicitor-client privilege. The respondent in claiming the solicitor-client
privilege is a legal right available to him and his firm. It is at the very best or worst a neutral stand which infers nothing adverse against the respondent. (paras 36-43)

(3) From the evidence of Christopher Leong and Richard Wee, the then President and Secretary of the Malaysian Bar respectively, there is no any indication that they had personal knowledge as to who had instructed to the drafting of SD2 and who had a hand in the preparation of SD2. Bearing in mind the charge against the respondent was simply that he was responsible for the drafting of SD2, neither the evidence of the President or Secretary advanced the case for the appellant against the respondent. Their evidence at best is formal. (para 46)

(4) As for the evidence of Tommy Thomas (‘Thomas’) relating to the gathering at Renaissance Hotel Bar, there were nine people present, and only Thomas had testified that the respondent had divulged to the people present at the gathering that he was the one who had drafted SD2. Thomas’s assertion naturally was flatly denied by the respondent at the DC hearing. Thomas’s assertion appeared
to be at odds with the evidence of four fellow advocates and solicitors, namely Johari Razak and Darryl Goon. The personalities above testified that at no time did the respondent say that he had anything to do with SD2. Johari had
also written a letter to deny the version of Thomas’s recollection of what was said by the respondent. As rightly found by the Chairman of the DC, in the face of denials by the three witnesses as mentioned earlier, even though such
denials are in the form of not remembering that the respondent admitted, the benefit of the doubt was to be given to the respondent. (paras 49-53)

(5) Americk’s primary evidence was that the respondent had expressly confessed to him that he was the one responsible for the drafting of SD2 on the instruction of Datuk Seri Najib. That was what he also said at the Malaysian Bar AGM, and that was that the respondent had confessed to him and even
apologised for having done so. And it was for those utterances by Americk that the appellant lodged a complaint against the respondent. However, when confronted with the statutory declaration of Socks which stated that at no time at that meeting did the respondent confess or apologise, Americk said that what Socks said was correct technically and the confession and apology were ‘inferences’ and ‘assumptions’. An express confession could not by any stretch of the imagination be equated with an ‘assumption’. If indeed there was an assumption, there was no need for a confession by the respondent. His testimony had also neutralised the evidence of Americk by giving two versions of the event which could not be reconciled. Under such circumstances, the party which bears the burden of proof will suffer the consequence of not having proven its case. Herein, the burden was on the appellant. (paras 58-60)

(6) As for the evidence of one Arulampalam Mariam Pillai, there was no value to it simply that he did not know about the allegation made against the respondent. The same could be said of one Zulkifli Sulong who had interviewed Deepak Jaikishan (Deepak) wherein Deepak allegedly mentioned the respondent’s name in regard of the preparation of SD2, but Deepak never came to testify before the DC. Hence, at best, the evidence was hearsay as Zulkifli had said that he had no personal knowledge of the allegation against the respondent. As for the evidence of the remaining two witnesses from Harakah daily, namely Mohd Nazri Abdullah and Majdan Yahya, their evidence was similar to that of Zulkifli in that they were hearsay evidence. In regard of the evidence of Sivarasa Rasiah who had acted for Deepak to file a suit against Datuk Seri Najib, Sivarasa had testified that he had no personal knowledge; hence his evidence was also of no value to the allegation made against the respondent. (paras 61-64)

(7) Sitting in an appellate level and in this case, in its fifth tier, this court must have exceptional reasons to disturb findings of four level of tribunals. The respondent was judged by his peers in the forms of the DC and the DB, and they saw it fit to conclude that the evidence had not met the threshold of the beyond reasonable doubt test. Not only that, both the High Court and the Court of Appeal also saw no reason to disturb the findings of the DC and DB. The evidence of Thomas and Americk, which had been neutralised
by contrary evidence, were relied heavily on by the appellant and given this court’s analysis of the same, this court could not accede to the submission proffered by the appellant. Hence, there was no failure on both the High Court and Court of Appeal in appreciating the circumstantial evidence. It had not been shown to this court that there was a failure by the disciplinary body in acting justly and judicially in carrying out its duties and that the hearing was conducted without due deliberation and understanding given to the facts of the complaint. There was no blatant error in the application of the law to the factual circumstances. There were too many loose ends in the appellant’s case premised on circumstantial evidence. The appellant had failed in proving a beyond reasonable doubt case. (paras 68-70)

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