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[2000] Part 2 Case 15 [HCM] |
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www.ipsofactoJ.com/highcourt/index.htm
[2000] Part 2 Case 15 [HCM] |
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HIGH COURT OF MALAYA |
The Bar Council
- vs -
Jeyapalan Mahesan
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Coram KC VOHRAH J |
22 FEBRUARY 2000 |
Judgment
KC Vohrah J
Under paragraph 1 of the Schedule to the Legal Profession Act 1976 (the Act) the Bar Council may require the production or delivery to an appointed person and the Bar Council may take possession of certain documents in the possession and control of an advocate and solicitor or his firm.
The
Schedule also provides other procedures to be adopted after the Bar Council
has taken possession of such documents as to notices of the particulars of
the said documents to be sent to the said advocate and solicitor, for the
said advocate and solicitor to apply to a Judge-in-Chambers for the return
of the documents and for the Bar Council to deal with the documents. There
are other procedures relating to trust moneys relative to the said advocate
and solicitor or his firm.
Under paragraph 2(b) of the Schedule, the High Court or a Judge may, on the application of the Bar Council, inter alia, order that person to comply with the requirement made under paragraph 1 and to deliver documents within such time as may be specified in the order or to search for and take possession of the documents referred to in paragraph 1.
The application before me is an application against the defendant made pursuant to the said paragraph 2(b). The Bar Council relies on s 88 as the basis for the application under the said paragraph 2(b).
Subsection (1) of s 88 reads,
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88. |
(1) |
The Bar Council may if it has reasonable cause to believe that an advocate and solicitor, or a clerk or servant of an advocate and solicitor, has been guilty of dishonesty in connection with that advocate and solicitor's practice as an advocate and solicitor or in connection with any trust of which that advocate and solicitor is a trustee, issue a certificate to that effect and thereupon the Schedule, except paragraph 7 thereof, shall apply in relation to that advocate and solicitor. |
Since the defendant has referred to several subsections of the same section, the relevant subsections of s 88 are reproduced below–
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88. |
(2) |
Where the name of an advocate and solicitor is removed from the Roll or an advocate and solicitor is suspended from practice, he shall, within twenty-one days from the material date, satisfy the Bar Council that he has made suitable arrangements for making available to his client or to some other advocate and solicitor or advocates and solicitors instructed by his client or by himself - |
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(a) |
all deeds, wills, documents constituting or evidencing title to any property, papers, books of account, records, vouchers and other documents in his or his firm's possession or control, or relating to any trust of which he is the sole trustee or co-trustee with one or more of his partners, clerks or servants; and |
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(b) |
all sums of money due from him or his firm to, or held by him or his firm on behalf of, his clients or subject to any such trust as aforesaid. |
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(3) |
If he fails so to satisfy the Bar Council, the said Schedule shall apply in relation to him. |
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The
relevance of subsections (2) and (3) of s 88 can be seen in the context of
an order made against the defendant in 1998. On July 16, 1998 the Chief
Judge Malaya, by an order, suspended the defendant from practice under s
88A(3) of the Act. Under subsection (6) of s 88A, the provisions of
subsections (2) and (3) of s 88 shall apply mutatis mutandis
to the advocate and solicitor relative to the date of the order of
suspension of the Chief Judge.
Coming back to the application before me, it seeks an order that the defendant hand over within seven days of the order to Mr. Puravelan certain documents in his possession or in the possession of Messrs Jeya Mahesan in connection with, inter alia, cases or conveyancing files handled, or books of accounts and other documents relating to clients and office accounts maintained, by Messrs Jeya Mahesan & Co. The relevant terms of the order sought read as follows -
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1. |
The Defendant either by himself, or his servant, or his agent or employees, do cause to be delivered to Mr. M. Puravalen within 7 days of the date of the order herein being served on the Defendant, all deeds, wills, documents constituting or evidencing title to any property, papers, books of account, records, vouchers and other documents in the Defendant's or his firm's possession or control, or relating to any trust of which he is the sole trustee or co-trustee with one or more of his partners, clerks or servants, and all sums of money due from him or his firm to, or held by him or his firm on behalf of, his clients or subject or any such trust as aforesaid including but not limited to the following:- |
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(i) |
all files related to any cases conducted by Messrs Jeya Mahesan & Co inclusive of but not limited to files which have been closed (inactive) or which are still open (active); and |
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(ii) |
all conveyancing files conducted by Messrs Jeya Mahesan & Co inclusive of but not limited to the files which have been closed (inactive) or which are still open (active); |
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(iii) |
all books of account, records, vouchers, cash books, books of receipt, bank statements, relating to client's accounts and office accounts maintained by Messrs Jeya Mahesan & Co inclusive of but not limited to other books, records and / or documents related to or containing any financial information in regards to the practice of the Defendant at Messrs Jeya Mahesan & Co; |
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(iv) |
all deeds, wills and documents constituting or evidencing title to any property. |
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It will be observed that the purported firm of the defendant in the order sought is named as "Messrs Jeya Mahesan & Co."
It is pertinent to sketch out the nature of the course of action the Bar Council took before making its application to the court.
About one year after the Chief Judge Malaya had made the suspension order against the defendant under s 88A(3), the Bar Council on June 12, 1999 certified pursuant to s 88(1) that there was reasonable cause to believe that the defendant "Mr. Jeyapalan Mahesan of Messrs Clough Thuraisingham & Jeya Mahesan" (amongst other persons) had been found guilty of dishonesty in connection with his practice and resolved that the powers under s 88 and the Schedule to the Act be exercised in relation to his firm by the appointment of Mr. Puravalen as its representative to exercise all or any of the powers under the relevant provisions of the Act on its behalf.
The Bar Council on the same date resolved, inter alia, that Mr. Puravalen be appointed under s 88 of the Act to take control of the files and clients' accounts of Mr. Jeya Mahesan and to exercise the powers provided under the Schedule in relation to the said matters.
Following his appointment, Mr. Puravalen issued a notice on July 29, 1999 pursuant to paragraph I of the Schedule to the defendant requiring that certain documents to be handed over to him. The relevant part of the notice reads (and it will be noted that the name of the firm referred to in the notice is Messrs Jeya Mahesan & Co) -
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RE: NOTICE UNDER THE SCHEDULE PURSUANT TO SECTION 88(1) OF THE LEGAL PROFESSION ACT 1976
......... |
The defendant, on August 4, 1999, replied to this notice and refused to deliver the documents requested for and thus this application before the High Court under paragraph 2(b) of the Schedule to the Act.
The defendant has objected to the application. An observation was made that the Bar Council had sat on the suspension order of the Chief Judge Malaya for about 12 months before deciding to move against the defendant under s 88(1) and the Schedule. But the thrust of the main objection to the application is this - the resolution made by the Bar Council relates to the exercise of powers under the Schedule in respect of the defendant who was named in the certificate of the Bar Council of June 12, 1999 as being Mr. Jeya Mahesan of the firm of "Messrs Clough Thuraisingham & Jeya Mahesan" but the notice sent relates to the delivery of "files and accounts of your firm Messrs Jeya Mahesan & Co" and the notice went beyond what was resolved by the Bar Council. Then it is argued, but basically it is the same argument as the main one, that there is inaccuracy in what the Bar Council is seeking and the defendant has difficulty in responding to the notice.
Although the provisions of the Schedule to the Legal Profession Act 1976 could have been applied to the defendant after he had been suspended on July 16, 1998 by the Chief Judge Malaya provided certain conditions were fulfilled by virtue of subsection (6) of s 88A and subsections (2) and (3) of s 88, I see no bar in the Bar Council having taken action under s 88(1) which brought into operation the provisions of the Schedule. That the Bar Council did not take action by virtue of subsection (6) of s 88A and subsections (2) and (3) of s 88 does not vitiate any action taken under s 88(1).
The Bar Council under s 88(1) acted on the "dishonesty" of the advocate and solicitor and it is in evidence that the defendant was suspended from practice. It must be observed that whatever the course of action the Bar Council takes, whether by virtue of s 88(1) or by s 88A(6) and subsections (2) and (3) of s 88, there is convergence in the use of the provisions of the Schedule (save for paragraph 7 which is excluded by s 88(1)) to proceed with certain procedures relating to certain documents and moneys in the possession of an errant advocate and solicitor and his firm where the advocate and solicitor has resisted compliance with applicable rules.
The Bar Council should ideally have acted more promptly but that it did not, waiting for almost a year before certifying on June 12, 1999 that the defendant, Mr. Jeyapalan Mahesan of Messrs Clough Thuraisingham & Jeya Mahesan", had been guilty of dishonesty in connection with his practice, does not invalidate the action under s 88(1) which set the provisions of the Schedule into motion. Action under the Schedule is certainly a necessity to protect the interests of former clients in respect of their documents and moneys in the control or possession of the defendant or his firm and it is really a case of better late than never if the notice in respect of what is required under paragraph 1 of the Schedule which was sent is valid.
In regard to the notice sent by Mr. Puravalen, appointed by the Bar Council, "to take control of files and clients' accounts of your firm, Messrs Jeya Mahesan & Co", the argument is that it has to be shown that at the material time - the date of the suspension order - that there was a practice known as "Messrs Jeya Mahesan & Co". It is pointed out that the resolution of the Bar Council of June 12, 1999 referred to the defendant as being of the firm of "Messrs Clough Thuraisingham & Jeya Mahesan." The notice, it is argued, is directed at the firm of Messrs Jeya Mahesan Co which did not exist at the material time, July 16, 1998.
It will be noted that the notice does not request for the files and clients' accounts in the possession of the defendant but "the files and clients' accounts of your firm Messrs Jeya Mahesan & Co". The Bar Council certified on June 12, 1999 that action was to be taken against the defendant, "Mr. Jeyapalen Mahesan of Messrs Clough Thuraisingham & Jeya Mahesan" and the notice sent by him in fact make reference to the certificate.
Clearly the notice sent by Mr. Puravalen who acted for the Bar Council went outside the scope of the duty entrusted in him which was to go against the defendant and the firm of "Clough Thuraisingham & Jeya Mahesan". In any event no proof was afforded that the firm was Messrs Jeya Mahesan & Co and that it existed at the time of the suspension. Paragraph 2(b) allows the court to make the order under its terms but the court must first be satisfied that if "any person having possession or control of any such documents fails to comply further with such requirement", the requirement being what is stated in paragraph 1 (and in the context of the Bar Council's resolution, the notice, sent by Mr. Puravalen).
The requirement (in the form of the notice) does not comply with what the Bar Council resolved nor has it been shown that Messrs Jeya Mahesan existed at the time of the suspension. I cannot make the order requested for.
As a passing thought, if a charge for a criminal offence is brought under paragraph 2(a) of the Schedule for non-compliance of the requirement it is most unlikely the charge will succeed as the ingredients of the offence cannot be proved on the facts disclosed before me in this case.
I would dismiss the application with costs.
Legislations
Legal
Profession Act 1976: s.88(1) s.88(2) s.88(3) s.88A(3) s.88A(6), para.1 para. 2(b) of
Sch.
Representation
N Navaratnam (Saheran Woon & N Navaratnam) for Plaintiff
Manjeet Singh Dhillon (Manjeet Singh Dhillon & Co) for Defendant
Notes:-
This decision is also reported at [2000] 2 AMR 1466
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