PETALING JAYA: The Court of Appeal has allowed a lawyer’s appeal against a High Court decision despite disagreeing with his contention that the board had applied the wrong standard of proof to find him guilty of misconduct.
In doing so, the court unanimously overturned a RM10,000 fine imposed on lawyer A Sivanesan by the advocates & solicitors’ disciplinary board.
It also ordered the Malaysian Bar to pay him RM5,000 in costs.
The appeals court unanimously held that while the standard of proof required to establish professional misconduct is “beyond reasonable doubt”, disciplinary proceedings conducted by the board and the disciplinary committee established under the Legal Profession Act 1976 are not subject to that standard.
In a 20-page written judgment released last week, Justice Hashim Hamzah said this was because a disciplinary proceeding “is not subject to the rigid and strict adversarial procedures in criminal trials”.
“The disciplinary proceeding may be conducted in any method or manner deemed appropriate as long as it is not in breach of any specific provisions of the relevant statutes or regulations and does not result in a denial of natural justice to the member concerned,” Hashim wrote in his judgment.
Sitting with Hashim were Justices Yaacob Sam and P Ravinthran.
Sivanesan was appealing a High Court decision handed down in February last year which upheld the RM10,000 fine imposed on him by the disciplinary board after finding him guilty of professional misconduct.
The disciplinary proceedings were brought by K Pathmalingam, a litigant in an Industrial Court action, who had alleged various breaches by Sivanesan of the Legal Profession Act and its etiquette rules.
In its report issued in August 2018, the disciplinary committee identified several misconducts allegedly committed by Sivanesan.
These included deceiving the Industrial Court into believing that he was acting for Pathmalingam, failing to comply with an undertaking given to the Industrial Court to file forms confirming his appointment, and failing to appear and be ready for trial.
Those findings, which were affirmed by the High Court, were set aside by the Court of Appeal.
“It has always been the position of the Industrial Court that the proper filing of Forms A and B will determine whether the representative of either party has the locus standi to appear before the Industrial Court as that party’s representative,” Hashim said in his judgment.
Only then it can be said that a counsel is representing a claimant in the Industrial Court, he said.
However, since those forms were never filed in the Industrial Court, Sivanesan had no locus standi to appear as Pathmalingam’s representative, said Hashim.
The Court of Appeal also observed that the Industrial Court’s notes of proceedings did not show that Sivanesan went on record as acting for Pathmalingam.
“The (disciplinary committee) and (disciplinary board) failed to give proper weight to the relevant evidence.
“This error rendered the (committee’s) recommendation and the (board’s) decision highly perverse, warranting appellate intervention,” said Hashim.
Pathmanathan filed the complaint against Sivanesan on June 13, 2016, after the Industrial Court struck off his claim for unfair dismissal due to his absence in court.
He claimed that Sivanesan had failed to inform him of the hearing date, but acknowledged that he did not execute Forms A and B to appoint the lawyer to act for him.
Sivanesan was represented by counsel R Kengadharan. Heng Yee Keat acted for the Bar while Pathmanathan appeared in person.
The Bar has filed an appeal to the Federal Court.
