In one of the more recent Court of Appeal decisions, the Court of Appeal reiterated the entrenched principle in that it is only in rare and exceptional circumstances in which the Courts should interference with the discretion exercised by the Advocates & Solicitors Disciplinary Board in coming to a disciplinary decision of an advocate & solicitor. Alizatul Khair Osman Khairuddin JCA referred to this well-established principle in the decision of Majlis Peguam v Mohinder Kaur d/o Balbir Singh Deol (Court of Appeal Civil Appeal No. W-04-1324-2008). This Court of Appeal decision was appealed to the Federal Court via Federal Court Civil Appeal  No. 02-60-10/2011 and on 25 June 2013, the Federal Court dismissed the appeal and affirmed the Court of Appeal decision.

The summary of this principle is that the statutory mechanism for disciplinary proceedings of advocates & solicitors provides that a lawyer will be heard and tried before his own peers. It is for the statutory body, the Disciplinary Board, to then best assess the appropriate sanction and hence the Courts should rarely interfere in such decisions.

This approach is set out in the following appellate authorities in Malaysia.

In the Federal Court decision of Keith Sellar v Lee Kwang Tennakoon v Lee Kwang [1980] 2 MLJ 191 (F.C.), Hashim Yeop A Sani J held:

“We feel bound to reiterate here that the legal profession is an honourable profession whose members are expected to conduct themselves honourably. The appellants here were dealt with in a proceeding by virtue of a statute enacted to govern the conduct of members of their profession. Morever, they were tried by their own peers. Members of the Disciplinary Committee were senior members of the profession who made firm findings of fact and they concluded that the appellants were guilty of misconduct in their practice as advocates and solicitors. The Chief Justice stated in Au Kong Weng’s case that statutes relating to the legal profession now entrust the supervision of advocates and solicitors’ conduct to a committee of the profession, for it knows and appreciates better than anyone else the standards which responsible legal opinion demands of its own profession.”

In adopting the Privy Council decision of Colin Kenneth McCoan v General Medical Council [1964] 1 WLR 1107

“it would require a very strong case to interference with sentence in such a case, because the Disciplinary Committee are the best possible people for weighing the seriousness of the professional misconduct.”

Secondly, in the Court of Appeal decision of Gana Muthusamy v LM Ong & Ors [1998] 3 MLJ 341 (C.A.) (“Gana Muthusamy”), Gopal Sri Ram JCA (as he then was) held:

“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 that honourable profession. Courts must necessarily exercise 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.”

Thirdly, the Court of Appeal decision of Gana Muthusamy was also recently approved by the Court of Appeal in Loh Chow Tet v Kok Bun Kau (Court of Appeal Civil Appeal No. P-02-929-2010). The Court of Appeal upheld the High Court decision which in turn had upheld the Disciplinary Board’s decision. Low Hop Bing JCA held that:

“[16]   We note that in this Appeal, the DB has considered the factual report  of  the  Disciplinary  Committee  (“the  DC”). The  DB  has  been entrusted with the responsibility of investigating and deciding  on the conduct  of the  A  &  S.  Whether  the  A &  S has measured up to the professional  standard  expected  of  a  member  of  the  profession  or conduct unbecoming of an advocate and solicitor is a matter which is eminently  within  the  domain  of  the  DB,  and  not  the  Court.    This sentiment  was expressed in Guna Muthusamy v LM Ong [1998] 4 CLJ 878 …”

The above appellate authorities is also consistent with the English approach. In the English Court of Appeal decision of Bolton v Law Society [1994] 2 All ER 486 (C.A.), Sir Thomas Bingham MR held that:

“A solicitor who discharged his professional duties with anything less than complete integrity, probity and trustworthiness had to expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal, and except in a very strong case, an appellate court should not interfere with the sentence imposed by the tribunal. The decision whether to strike off or to suspend involved a difficult exercise of judgment made by the tribunal as an informed and expert body on all the facts of the case, and only in a very unusual or venial case would the tribunal be likely to regard as appropriate an order less severe than one of suspension.”

While the approach in Bolton still remains as good law, one must just take note of the subsequent English Court of Appeal decision of Law Society v Brendan John Salsbury [2008] EWCA Civ 1285. This decision took into account the Human Rights Act 1998 and held that:

“It was now an overstatement to say that a ‘very strong case’ was required before the court would interfere with the sentence imposed by the tribunal. The correct analysis was that the Solicitors Disciplinary Tribunal comprised an expert and informed tribunal, which was particularly well placed in any case to assess what measures were required to deal with defaulting solicitors and to protect the public interest. Absent any error of law, the High Court had to pay considerable respect to the sentencing decisions of the tribunal. Nevertheless, if the High Court, despite paying such respect, was satisfied that the sentencing decision was clearly inappropriate, then the court would interfere …”