By Nadesh Ganabaskaran
Partner, Messrs Malek, Paulian & Gan
Yes, you read it right!
On 23.7.2019, the High Court at Kuala Lumpur ruled that it has no powers to grant a stay pending hearing of an appeal, against of the Order by the Advocates & Solicitors Disciplinary Board dated 12.4.2019 (“DB’s Decision”), pursuant to section 103E of the Legal Professional Act 1976 (“LPA”).
The aforesaid decision affects all practising lawyers in Malaysia, due to a lacuna in the LPA as it appears that there is no interim recourse against Orders of the Disciplinary Board pending hearing of the appeal under section 103E of the Act, to the detriment of lawyers in deserving cases.
The Appellant, a practising Advocate & Solicitor appealed to the High Court at Kuala Lumpur against the DB’s Decision, in imposing a fine and an order of suspension for a period of twelve (12) months to expire on 3.5.2020.
By an application filed at the High Court, the Appellant sought to stay the DB’s Decision forthwith pending the hearing and disposal of the Appellant’s appeal at the High Court. In his affidavit in support, the Appellant contended that he has been in practise for 26 years and was a Managing Partner of a reputable Firm consisting of 19 solicitors. Should the stay be refused, it will cause ‘irreparable harm’ to the Appellant and/or the Firm. The ‘status quo’ should be maintained to avoid any prejudice to the Appellant and/or the Firm as there existed ‘special circumstances’ in warranting a stay.
In opposing the Appellant’s application, the Respondent (the Complainant in the DB) raised a preliminary issue on the grounds that the High Court has no jurisdiction to grant the stay sought, pursuant to sections 73 and 102 of the Courts of Judicature Act 1964 (“CJA”), which confer on the courts a judicial discretion to grant orders for stay of execution, but does not extend to stay of a Decision by the Disciplinary Board; and the High Court’s jurisdiction to grant a stay, exist in circumstances where there is an appeal to the Court of Appeal. There being no orders by the High Court, the jurisdiction to grant a stay pending appeal under the inherent jurisdiction of the High Court, does not arise in the circumstances.
On the substance of the application, the Respondent contended that the Appellant has failed to show any ‘special circumstances’ in justifying a stay. The grounds set out in the Appellant’s affidavit in support are nothing more than ordinary circumstances, to further delay the punishment vetted out by the Disciplinary Board on the Appellant.
The Appellant, represented by eminent Counsel submitted that should the stay be refused, the Appellant’s appeal will be rendered nugatory should he be successful in the appeal. Moreover, there are compelling reasons for a stay as the Appellant is already serving his sentence.
The Appellant conceded that there was a lacuna in the law as the LPA was silent on the powers of the High Court to grant a stay pending hearing of the Appeal under section 103 E. However, the Appellant argued that pursuant to the inherent jurisdiction of the court, the High Court had unfettered powers on the matters of stay and as such should accordingly exercise its jurisdiction in favour of the Appellant. The Appellant cited the authority of Nadarajan s/o Verayan v Hong Tuan Teck  1 MLJ 436 in support of his proposition that the court had inherent jurisdiction to grant the stay.
Further, the Appellant also cited the seminal case of Wilson and Church  12 ChD 454, where the House of Lords held that where an unsuccessful party is exercising an unrestricted right to appeal, it is a duty of the Court in ordinary cases to make such order for staying proceeding under the judgement appeal from, as will prevent the appeal, if successful, from being nugatory.
In the converse, firstly, the Respondent argued that section 103E of the LPA does not allow for a stay of an Order by the Disciplinary Board. Had it been the case, parliamentary draftsmen would surely have inserted a provision allowing a stay of the Order by the Disciplinary Board.
Furthermore, the LPA being a specific Act of Parliament to regulate the conduct of Advocates & Solicitors will override any general legislation, which empowers the High Court to grant the stay sought. See Brisdale Resources Sdn Bhd v Law Kim  6 MLJ 76. There being no express provision in the LPA, the High Court shall not intervene and provide a remedy where it does not exist.
Secondly, section 73 of the CJA (which the Application was based upon) confers on the courts a judicial discretion to grant orders for stay of execution. However, it does not extend to stay of a Decision by the Disciplinary Board. It was submitted that the words “under the decision appealed from” in section 73 of the CJA refers to a decision by a court of law and not disciplinary boards. Which means the High Court’s jurisdiction to grant a stay, exist in circumstances where there is an appeal to the Court of Appeal from a decision of the High Court and not otherwise. There being no orders by the High Court, the jurisdiction to grant a stay pending appeal under the inherent jurisdiction of the High Court, does not arise in the circumstances.
In any event, the inherent jurisdiction of the High Court is not unfettered. The phrase “in the interest of justice” upon which the inherent jurisdiction of the court is anchored on must, with respect, be interpreted within the boundary of the law: see Gee Boon Kee & Ors v Tan Pok Shyong as legal representative of the estate of Tan Ah Tong  1 MLJ 155, FC and Perbadanan Pengurusan Paradise Lagoon Apartment (North) & Anor v Pengkalen Holiday Resort Sdn Bhd  MLJU 1074, CA.
Decision of the High Court
On 23.7.2019, the High Court presided by Y.A Dato’ Sri Mariana Binti Haji Yahya, dismissed the Appellant’s application on the grounds that there are no provisions in the LPA which provides for a stay of DB’s Decision pending appeal.
The learned Judge also held that if section 73 of the CJA was to apply, section 73 itself states “unless from the Court below or the Court of Appeal so orders….”. The decision of the High Court in this regard was pending hearing of the appeal. Further, the learned Judge observed that the Disciplinary Board is not a court, hence clearly section 73 does not apply here.
The learned Judge further stated that the inherent jurisdiction of the Court as per Order 92 rule 4 of the Rules of Court 2012 is for the purposes of removal of doubt and to prevent injustice and that the court ‘may’ exercise its discretion. The learned Judge held that this was not a case where she would exercise her discretion pursuant to the inherent jurisdiction as she is not satisfied that the Appellant has shown any special circumstances or the Appellant’s case is persuasive enough to warrant a stay.
The High Court was right in its decision to dismiss the stay on the facts peculiar to this case and based on the existing laws. However, consideration should also be placed in deserving cases where there are merits in an application for a stay of disciplinary board’s decision pending an appeal to the High Court. Examples of such situations are my no means exhaustive and there should be existing laws under the LPA which expressly provide for judicial intervention.
Incidentally, I acted for the Respondent in this matter and owe a professional duty to my client to represent them in the best of my ability. However, I equally owe a duty to my profession to ensure that there exists safeguard to prevent injustice. As the adage goes “Not only must Justice be done; it must also be seen to be done.” As such, I will personally write to the Bar Council urging them to consider amending the LPA and inserting specific clauses for interim preservation to overcome the existing lacuna and to safeguard interest of lawyers in deserving cases.
23rd July 2019
Editor’s Note: Identity and names of the parties have been kept confidential in respecting their rights of appeal. The case citation will be provided once the High Court provides its Grounds of Judgment.