KUALA LUMPUR: A High Court in Ipoh recently reminded the Malaysian Bar's disciplinary board to uphold integrity while exercising its powers against the barristers.
Judge Bhupindar Singh Gurcharan Singh Preet said the disciplinary board, comprising two senior and experienced members of the Bar, had the duty and obligation under the law to comply strictly with the rules of natural justice.
"Initiating disciplinary proceedings and finding a person guilty of misconduct under the Legal Profession Act (LPA) is a serious matter.
"They must ensure that notice of hearing is served on the parties involved and the appellant is given an opportunity to be heard before any decision can be taken," he said.
The judge said this in his judgment in dismissing the board's decision in its disciplinary hearing against its member J. Hari Krishnan in July 2019.
According to brief facts, respondent Annathi@S. Ananthi had engaged with Hari Krishnan in 2013 as her solicitor to apply for letters of administration regarding her late husband's estate.
Annathi (respondent) paid Hari Krishnan (appellant) a total of RM4,685 for the service, but for one year, the former claimed that the lawyer misled her about the process and status of the application. The respondent then filed a complaint against the appellant to the Bar Council.
On March 15, 2017, the Bar Council informed the appellant that the disciplinary committee would be investigating the respondent's complaint.
In January 2019, the disciplinary committee forwarded the record of complaint to the appellant but failed to deliver the document to the correct address.
The disciplinary committee conducted the hearing on July 5, the same year, in the absence of the appellant and found that the latter had committed misconduct under Section 94(3)(c), (n), and (o) of the LPA.
The committee recommended that the appellant refund the sum of RM4,185 to the respondent and be fined a sum of RM5,000.
The appellant contended that he was not informed of the hearing and the Bar Council also admitted there might be an issue with serving hearing notices as they were not sent to the appellant's current address.
In January 2017, the appellant informed the disciplinary board that his new address was near Sunway City, Ulu Kinta, Perak. However, the hearing notices were sent to addresses in Bangsar South Avenue, Kuala Lumpur, and Taman Kamuncak, Perak.
The court said it was manifestly clear that the appellant was not informed of the hearing date, and the disciplinary committee continued with the hearing in his absence.
"There was a fundamental breach of natural justice as the appellant was not provided with an opportunity to be heard.
"They must ensure that notice of hearing is served on the appellant and the appellant is given an opportunity to be heard before any decision can be taken against him.
"Despite the presence of legally qualified individuals in the disciplinary committee, they proceeded with the hearing in the appellant's absence without confirming whether the notice of hearing had been served to him.
"This is clearly an undue and improper use of power entrusted in the hands of the members of the disciplinary committee," said the court.
The court also rejected the Malaysian Bar's request to send the case back to its disciplinary board for reconvening, reappointing, or reconstituting a disciplinary committee to rehear the complaint.
"I cannot condone such action by the members of the disciplinary committee.
"This court is not mindful of remitting the complaint to another newly constituted committee as it will portray the wrong message to all future disciplinary proceedings.
"The members conducting the disciplinary proceedings would be under the impression that they could adopt a lackadaisical attitude, and if there are any shortcomings, the matter would be remitted to another committee for rehearing," said the judge.