SIVA SUBRAMANIAM A/L M. SHANMUGAM v CHIN KAM SENG PENCELAH MALAYSIAN BAR

Case Significance

Affirms the breadth of the Bar Council's standing under section 103E(6) and section 42 of the Legal Profession Act to intervene at any stage of an appeal against a Disciplinary Board decision, especially where the appeal concerns the breach of a solicitor's undertaking.

This decision of the High Court of Malaya at Kuala Lumpur (Appellate and Special Powers Division) concerns an application by the Bar Council for leave to intervene in an appeal against a decision of the Disciplinary Board made under the Legal Profession Act 1976. The underlying proceeding was an originating summons by which the appellant, an advocate and solicitor, challenged an order of the Disciplinary Board that had made a finding of liability against him arising from a complaint that he had breached a solicitor's undertaking. The Bar Council applied under section 103E(6) of the Legal Profession Act, read with Order 15 Rule 6(2)(b) of the Rules of Court 2012, for leave to intervene in that appeal, and the respondent complainant did not object.

The court explained that it is settled law that the Bar Council has the right to intervene at any stage of an appeal against a decision of the Disciplinary Board. That right flows from the Bar Council's statutory function, under section 42 of the Legal Profession Act, to maintain and improve the standards of conduct of advocates and solicitors and to protect the public interest in the integrity of the profession. Because the outcome of the appeal turned on the circumstances in which a solicitor's undertaking is treated as having been breached — a matter squarely within the Bar Council's regulatory responsibility — the Bar Council had a legitimate and substantial interest in the determination of the appeal. Reviewing the cause papers and the parties' submissions, the court found merit in the application and allowed the Bar Council leave to intervene, making no order as to costs. Dissatisfied with the grant of leave, the appellant appealed. The court noted that the Bar Council's participation would assist rather than prejudice the fair determination of the appeal, since its role is to place before the court the profession's institutional perspective on the standard expected of a solicitor's undertaking, and that the absence of objection from the complainant reinforced the propriety of allowing it to be heard. The judgment affirms the breadth of the Bar Council's standing to participate in disciplinary appeals affecting professional standards.