536 Current Law Journal [2014] 8 CLJ

MOLLY MARGRETE ANDREW GOMEZ A

v.

TAN SUAT CHING;

MAJLIS PEGUAM MALAYSIA (INTERVENER)
B
HIGH COURT MALAYA, KUALA LUMPUR
ZALEHA YUSOF J
[JUDICIAL REVIEW NO: 17-20-06-2012]
4 APRIL 2013
C
LEGAL PROFESSION: Misconduct - Acting in a manner unbefitting
of an advocate and solicitor - Continuing to appear for client after
instructed otherwise - Whether contrary to s. 94(3)(n) & (o) Legal
Profession Act 1976
D
The respondent had appointed the appellant to act for her in a
divorce proceeding. However, on 4 October 2010, the respondent
had instructed the appellant not to act for her any further due to
the exorbitant fees. Despite the instruction, the appellant persisted
to appear on behalf of the respondent. Vide letter dated 13
E
October 2010, the respondent lodged a complaint against the
appellant to the Malaysian Bar Council Disciplinary Board (‘DB’).
The complaint was heard by a disciplinary committee who
formulated four charges against the appellant in its report. The
DB then accepted the report in its totality and imposed a fine of
F
RM3,000 on the appellant on the fourth charge, ie, “that the
appellant had purported to carry on acting for the respondent ...
even though the latter had made it clear that the former’s services
were no longer required”. Dissatisfied, the appellant filed this
appeal on the grounds, inter alia, that the DB had failed to take
G
into account that the appellant was still the solicitor on record for
the respondent as long as she was not served with a notice of
change of solicitor as provided by O. 64 r. 1 of the Rules of the
High Court 1980.

Held (dismissing appeal): H

(1) As long as there is no notice of change of solicitor filed, the

appellant was still the solicitor on record acting for the
respondent. However, the issue was “misconduct” of the
appellant as provided by s. 94(3)(n) and (o) of the Legal I
Profession Act 1976 (‘Act’). It was morally wrong for the
appellant to refuse to discharge herself and her act of
 Molly Margrete Andrew Gomez v.
[2014] 8 CLJ Tan Suat Ching & Anor 537

A continuing to appear in court again even after receiving the

letter from the respondent dated 15 October 2010 was clearly
an act without regards to her client’s interest and unbefitting
of an advocate and solicitor. This was contrary to s. 94(3)(n)
and (o) of the Act. (paras 9-11)
B
(2) The court found that the appellant was not prejudiced with
the second order of the DB which is a clarification of the first
order. It was to specify the charge she was found wanting.
There was no error in the order nor was the appellant misled
C as the appellant actually admitted that she had continued
appearing for the respondent even after the letter dated 15
October 2010. The appellant could not say that she was
confused when she knew what she had done and she had to
face the consequences of it. (para 14)
D
(3) It was clear from the notes of proceedings of the Disciplinary
Committee that the appellant had replied to the respondent’s
letter with her own letter dated 21 October 2010. It formed
part of the complaints made by the respondent against the
appellant, which the appellant was given and had the
E
opportunity to address. Therefore, the appellant’s complaint
that the addition of the fourth charge was unlawful and a
breach of natural justice could not hold water. (paras 15 &
16)
F (4) The appellant was not prejudiced since the notes of
proceedings did not show that the respondent had given
evidence in a Chinese dialect or that the appellant had
objected to the same. (para 18)

G Case(s) referred to:

Gana Muthusamy v. Tetuan LM Ong & Co [1998] 4 CLJ 878 CA (refd)
Kirba Daisy John Das v. Mahinder Singh Bachittar Singh [2011] 1 LNS
1854 CA (refd)
Lagenda Kencana Sdn Bhd v. Peter’s Holdings Sdn Bhd & Anor [2012] 3
CLJ 824 CA (refd)
H SPM Ramanathan Chettiar v. MPLM Muthiah Chettiar & Ors [1940] 1
LNS 97 HC (refd)

Legislation referred to:

Legal Profession Act 1976, ss. 77, 94(3)(n), (o), 103B
Legal Profession (Practice and Etiquette) Rules 1978, r. 16
I
Rules of Court 2012, O. 64
Rules of the High Court 1980, O. 64 r. 1
538 Current Law Journal [2014] 8 CLJ

For the applicant - Molly Margrete Andrew Gomez; M/s Molly M Gomez & A
Assocs
For the respondent - Kuan Chee Yoon; M/s Arden Kuan & Co
For the intervener - Avinder Singh Gill Ranjit Singh; M/s AS Gill & Salina

Reported by Lyana Shohaimay

B

JUDGMENT

Zaleha Yusof J:
C
[1] This is an appeal against the “4th part” of the order of the
Disciplinary Board dated 12 April 2012 against the appellant
which read:
In respect of the 4th part of the complaint to wit that the D
Respondent had continued to act for the Complainant in the Kuala
Lumpur High Court Divorce Petition No. S8-33-193-2008 even
though the Complainant had informed the Respondent to stop
acting, the Respondent do pay a penalty of Ringgit Malaysia
Three Thousand (RM3,000.00) payable to the Discipline Fund
within one (1) month from the date of this Order, failing which E
the respondent shall be suspended pursuant to Section 103(1) of
the Act from practice as an Advocate and Solicitor until payment
of the penalty.

[2] The respondent had appointed the appellant to act for her
F
in a divorce proceeding in KL High Court. However, on
4 October 2010, the respondent had instructed the appellant not
to act for her any further and further instructed the appellant not
to appear in court the following week that is on 12 October 2010.
Despite the instruction, the appellant continued to appear in court
G
on behalf of the respondent not only on 12 October 2010 but
also on all dates set by the court thereafter. The respondent
lodged a complaint against the appellant to the Disciplinary Board
by a letter dated 13 October 2010 as follows:

(a) that she was issued with a bill for RM600,000 although the H
agreed fee was alleged to be RM6,000.

(b) that she had discharged the appellant on 4 October 2010 on

the grounds that the appellant’s fees were exorbitant and
expressly instructed the respondent not to appear on her I
behalf on 12 October 2010; and
 Molly Margrete Andrew Gomez v.
[2014] 8 CLJ Tan Suat Ching & Anor 539

A (c) Notwithstanding the express instruction not to appear on

12 October 2010, the respondent appeared before the Senior
Assistant Registrar.

[3] The Disciplinary Committee heard the complaints and in its

B report had formulated the following charges against the appellant:

(i) That the appellant had verbally agreed to charge RM6,000 for
acting for the respondent in KL High Court Divorce Petition
No. S8-33-1793-2008 but ended up issuing a bill for
RM60,000 instead. (This part of the complaint dismissed).
C
(ii) That the appellant had attended before the Senior Assistant
Registrar of the High Court on behalf of the respondent on
12 October 2010 although the complainant had instructed her
not to do so. (This part of the complaint dismissed).
D
(iii) That the appellant had during the court appearance before the
Senior Assistant Registrar on 12 October 2010 acted to the
respondent’s detriment by agreeing to transfer complainant’s
1/2 share in two houses to complainant’s husband (the
E petitioner) despite the complainant’s instructions not to
consent to the petitioner’s request. (This part of the complaint
dismissed).

(iv) That the appellant had purported to carry on acting for the
complainant in KL High Court Divorce Petition No. S8-33-
F
1793-2008 even though the later had made it clear that the
former’s services were no longer required. (Appellant to pay a
penalty of RM3,000).

[4] The Disciplinary Board accepted the report in its totality and
G fined the appellant RM3,000 on the fourth charge.

[5] The appellant’s complaints in this appeal were based on the

following grounds:

(i) that the Disciplinary Board had failed to take into account
H
that the appellant was at all times the solicitor on record for
the respondent as she was not served with the notice of
change of solicitor as provided by O. 64 r. 1 of the Rules of
the High Court 1980 which is in pari materia with O. 64 of
the Rules of Court 2012.
I
540 Current Law Journal [2014] 8 CLJ

(ii) that there are two orders in respect of one investigation which A
contravenes the Legal Profession Act 1976 (Act 166) as there
is no provision in s. 103 of Act 166 which allows the
Disciplinary Board to amend orders made pursuant to that
section.
B
(iii) further there was inconsistency in the first order that in para
(ii) of the Order, the Disciplinary Board had dismissed the
second part of the complaint, to wit, the appellant had
allegedly attended before the SAR on behalf of the respondent
although the respondent had instructed her not to do so and C
yet in para IV of the order she was penalised when there is
no date specified in para IV of that order and the complaint
was dated 13 October 2010.

(iv) that there was an unlawful addition of change by the

D
Disciplinary Committee as the fourth part was not part of the
complaint and no application to amend was made by the
Disciplinary Committee; and this is contrary to s. 103B of Act
166.

(v) that there was a breach of natural justice as the appellant was E
denied her right to respond by the creation of the fourth
charge.

(v) that the appellant was prejudiced as the respondent was

allowed to speak in a Chinese dialect without an interpreter. F

Decision

That The Disciplinary Board Had Failed To Take Into Account That
The Appellant Was At All Times The Solicitor On Record For The
Respondent As She Was Not Served With The Notice Of Change Of G
Solicitor As Provided By O. 64 r. 1 Of The Rules Of High Court 1980
Which Is In Pari Materia With O. 64 Of The Rules Of Court 2012

[6] No doubt as referred by the appellant, that O. 64 r. 1 of

the Rules of Court 2012 (or Rules of the High Court 1980) H
provides as follows:
Order 64 r. 1[1]
A party to any cause or matter who sues or defends by a solicitor
may change his solicitor without an order for that purpose but,
I
unless and until a notice of change is filed and served in
accordance with this rule, the former solicitor shall subject to rules
4 and 5, be considered the solicitor of the party until the final
conclusion of the cause or matter.
 Molly Margrete Andrew Gomez v.
[2014] 8 CLJ Tan Suat Ching & Anor 541

A [7] The appellant also refers to r. 11-06 Rules and Rulings of

the Bar Council Malaysia which inter alia read:
(1) An Advocate and Solicitor on record is deemed, as between
himself and the opposing party, to represent his client unless he
has been discharged in accordance with the relevant rules of the
B
Court concerned.

[8] The appellant also relies on the following decision to support

her contention that she has locus to represent the respondent
until the notice of change of solicitor is filed and served:
C
– SPM Ramanathan Chettiar v. MPLM Muthiah Chettiar & Ors
[1940] 1 LNS 97; [1940] 9 MLJ (SSR) 36

– Kirba Daisy a/p John Das v. Mahinder Singh a/l Bachittar Singh
[2011] 1 LNS 1854; [2012] 6 AMR 381; and
D
– Lagenda Kencana Sdn Bhd v. Peter’s Holdings Sdn Bhd & Anor
[2012] 3 CLJ 824; [2012] 4 MLJ 855.

[9] I have no quarrel that the legal position is as long as there

E is no notice of change of solicitor is filed, the appellant is still the
solicitor on record acting for the respondent. However, here we
are looking at the “misconduct” of the appellant as provided for
by s. 94 of Act 166. None of the cases cited by the appellant
were decided under Act 166.
F
[10] Section 94(3)(n) and (o) of Act 166 clearly includes
“misconduct” of an advocate and solicitor as gross disregard of his
client’s interests and being guilty of any conduct which is
unbefitting of an advocate and solicitor or which brings or is
calculated to bring the legal profession into disrepute.
G
[11] It cannot be disputed that the respondent had clearly
indicated to the appellant, especially in a letter dated 15 October
2010 which the appellant admits she had received, that the
respondent instructed the appellant to discharge herself and not
H to appear in court any further. Hence, it is in my opinion, morally
wrong for her to refuse to discharge herself and her act of
continuing to appear in court again after receiving the letter was
clearly an act without regards of her client’s interest and her
conduct is a conduct which is unbefitting of an advocate and
I solicitor, contrary to the said s. 94(3)(n) and (o) of Act 166.
542 Current Law Journal [2014] 8 CLJ

[12] Even r. 16 of the Legal Profession (Practice and Etiquette) A

Rules 1978 requires her to uphold interest of her client. It must
be noted that the said Rules were made pursuant to s. 77 of Act
166 which clearly provides that failure to comply with any rule
made under that section would make an advocate and solicitor
liable to disciplinary proceedings. B

[13] Therefore I cannot agree with the appellant that just

because there is no notice of change of solicitor was filed, no
disciplinary action can be taken against her, when it is so obvious
she had acted contrary to her client’s interest. C

That There Are Two Orders In Respect Of One Investigation Which

Contravenes The Legal Profession Act 1976 (Act 166) As There Is No
Provision In s. 103 Of Act 166 Which Allows The Disciplinary Board
To Amend Orders Made Pursuant To That Section
D
Further There Was Inconsistency In The First Order That In Para (ii)
Of The Order, The Disciplinary Board Had Dismissed The Second Part
Of The Complaint To Wit The Appellant Had Allegedly Attended Before
The SAR On Behalf Of The Respondent Although The Respondent Had
Instructed Her Not To Do So And Yet In Para IV Of The Order She E
Was Penalised When There Is No Date Specified In Para IV Of That
Order And The Complaint Was Dated 13 October 2010

[14] I have scrutinised the two orders and I agree with the
intervener that the second order clarified the first order. I am of F
the opinion that the appellant is not prejudiced at all with the
second order as it was to specify the charge she was found
wanting. I do not find any error here or that the appellant had
been misled as the appellant actually had admitted that she had
continued appearing for the respondent even after the letter of 15 G
October 2010. On the first order, even though no date was
specified in part IV, and even though the first letter of complaint
was dated 13 October 2010, there was a further letter of
complaint dated 22 October 2010 at p. 13 of encl. 5 which said
that the appellant had refused to discharge herself on 15 October H
2010. To me, the appellant cannot now say that she was
confused as she knew what she had done and that she has now
to face to consequences of it.

I
 Molly Margrete Andrew Gomez v.
[2014] 8 CLJ Tan Suat Ching & Anor 543

A That There Was An Unlawful Addition Of Charge By The Disciplinary

Committee As The Fourth Part Was Not Yet Of The Complaint And
No Application To Amend Was Made By The Disciplinary Committee;
And This Is Contrary To s. 103B Of Act 166

B That There Was A Breach Of Natural Justice As The Appellant Was

Denied Her Right To Respond By The Creation Of The Fourth Charge

[15] It is clear from the notes of the proceedings before the

disciplinary committee, the appellant, as mentioned earlier, had
admitted to receiving the letter of 15 October 2010 and that she
C
had already responded to it by her own letter dated 21 October
2010. And yet, without regard to her client’s (respondent)
instructions, she attended the court on 18 November 2010 and
17 February 2011.
D [16] To me, what transpired after 12 October 2010 was also part
of the complaints if we were to look at the second complaint of
the respondent dated 22 October 2010 at p. 13 of encl. 5. The
events after 12 October 2010 were submitted before the
disciplinary committee proceeding and from the notes of
E proceedings I found that the appellant was given and had
opportunity to address the matter. Hence, I am of the view that
the appellant’s contention that there was an unlawful addition of
the charge and that there was a breach of natural justice cannot
hold water.
F
[17] Refer to the notes of proceedings at pp. 188, 193, 222 to
232 of encl. 5.

That The Appellant Was Prejudiced As The Respondent Was Allowed To

Speak In A Chinese Dialect Without An Interpreter
G
[18] On this, I have perused the notes of proceedings and
nowhere could I find evidence that the respondent had given
evidence in a Chinese dialect or objection by the appellant on that
issue. There was also no objection or anything raised about this
H during submission made by her counsel.

Conclusion

[19] The Court of Appeal in Gana Muthusamy v. Tetuan LM Ong

& Co [1998] 4 CLJ 878 has said as follows:
I
It is primarily for members of the Bar to decide what amounts to
conduct unbecoming of an advocate and solicitor in particular
circumstances, according to standards established by members of
544 Current Law Journal [2014] 8 CLJ

that honourable profession. Courts must necessarily exercise A

caution when entertaining an appeal in which the central question
is whether particular conduct is unprofessional and cases meriting
curial interference will be rare. Otherwise it will be the court and
not the profession that will determine the yardstick of professional
behaviour. We would, in this context, express our agreement with
B
the following passage in the Guide to the Professional Conduct of
Solicitor issued by the Council of the Law Society in 1974,
quoted by the learned judges of the High Court in their judgment:

One of the hallmarks of a developed profession is that it

should lay down and maintain standards of professional C
conduct for its members based upon the best thinking of
those members as to what constitutes proper conduct for a
member of that profession.

In our judgment, a court will be entitled to interfere only if what

has been found by a disciplinary committee to be unprofessional D
conduct will not be considered to be such by the best thinking
members of the profession. The present case does not come
within the reach of that test and accordingly this appeal fails.

[20] Based on the authority and the reasons stated above, I

E
dismiss this appeal with no order as to cost.