Bar Council Malaysia & Anor v Judy Blacious s/o AF Pereira [2017] 1 MLJ 670

Case Review: Bar Council Malaysia & Anor v Judy Blacious s/o AF Pereira [2017] 1 MLJ 670

Court: Court of Appeal (Putrajaya)

Judges: Hamid Sultan, Umi Kalthum, Zamani A Rahim JJCA

Date of Judgement: 1 November 2016

Topic: Qualification to Be Admitted as Advocate & Solicitor (Ethics)

Facts

1.     Judy Blacious s/o AF Pereira (“the Respondent”) filed the petition to be admitted as an Advocate and Solicitor on 23.07.2012.

2.     The first Appellant had through its letter of 08.10.2012 indicated that it had no objections to the Respondent’s petition.

3.     On 19.10.2012, the Respondent was ‘short called’ in accordance to Section 36(2)(a) and (b) of Legal Profession Act 1976 (“Act 166”).

4.     The High Court Judge (‘Justice Lee’) allowed the Respondent’s petition to the Bar on the condition that the Respondent must complete eight hours of human rights program organised by Bar Council Human Rights Committee or the Perak State Bar (‘the said order’).

5.     However, the Respondent did not comply to the said order because he attended eight hours of human rights program organised by Brickfields Asia College and UNHCR instead of the one organised by Bar Council or Perak State Bar.

6.     The Respondent, without complying with the orders fixed the petition for continuous hearing before another High Court Judge (‘the learned judge’) to prove that he complied with the said order.

7.     The learned judge decided that there was substantial compliance with the said order and allowed the Respondent’s petition.

8.     The Appellants did not agree with the decision on the pretext that the learned judge failed to give sacrosanct value to the terms of the order made by Justice Lee beforehand, hence this appeal.

Issues

1.     Whether the Respondent is qualified to be admitted as an Advocate and Solicitor notwithstanding his failure to comply with the terms of the said order?

Ratios

1.     To decide the issue, the Court of Appeal in delivering the judgment read the last paragraph of the learned judge’s judgment as follows:

As the petitioner has attended a human rights course organised by the United Nations and there is no basis to suppose that the course is in any way inferior to the courses organised by Bar Council, I do not think it fair to delay the petitioner’s call any longer. Accordingly, I ruled that the petitioner had substantially complied with the court order and admitted him as an advocate and solicitor of the High Court of Malaya. Additionally, the petitioner gave an undertaking to this court that after his admission he would attend a course on human rights organised by the Bar Council.”

2.     To attain a full understanding of the case, the Court of Appeal deliberated the memorandum of appeal filed by the Appellants which it simplistically stated that the learned Judge erred in fact and/or law in holding that the Respondent had substantially complied with the said order.

3.     The Court of Appeal was seen leaning to the Appellant’s ground of appeal where the learned Judge did not give due consideration to the fact that the non-fulfilment of the condition specified in the said Order resulted in the Respondent having lost the benefit of the same.

4.     At this juncture, the Court of Appeal agreed that the condition imposed by the said Order was very specific which was 8 hours of Human Rights Courses organised by the first Appellant.  This left no room for the Respondent to take other steps towards ‘conscientisation’, the underlying aim of the condition, as was made clear by Justice Lee Swee Seng in his grounds of judgment.

5.     The Respondent was well aware of the terms of the said Order.  As such, the Court of Appeal made a finding that the Respondent’s act of participating in the lectures falling outside the scope of the said Order had proved that he had done so in clear defiance of what was prescribed by the said order.

6.     Further, the Respondent did not even seek the permission of the first Appellant to involve himself with the UNHCR or attend the Brickfields Asia College lecture which concludes that the Respondent had acted unilaterally and contumeliously.

7.     Having correctly referred the law provisions and the case of Dinesh Kanavaji a/l Kanawagi & Anor v Ragumaran a/l N Gopal (Bar Council Malaysia, intervener) [2016] 5 MLJ 79 it was applied that the Respondent intending to be an advocate and solicitor may not be eligible to be an advocate if it was decided by the relevant bodies or court that Respondent has no respect for the rule of law or does not subscribe to the ethics under Act 166.

8.     The Court of Appeal also found that the views of Bar Council or relevant bodies must not be taken lightly by the lower courts because the relevant bodies have been granted a statutory right to object the petition under Section 16 of Act 166.

9.     The Court of Appeal in its humbling statement said that a person can become a law graduate but not a practising lawyer if he cannot fulfil the requirements under Legal Profession Act 1976.

10.  The Court of Appeal in its final judgment held that the contemptuous submission of the Respondent asserting that he can ignore the order of the court will result in grave breach of rule of law and/or ethics which will further disentitle him to be admitted as advocate and solicitor to the Malaysian Bar.

Decision

1.     The Respondent is not qualified to be admitted as an Advocate and Solicitor as he failed to comply with the terms of the said order.

Key Take Away

1.     It is well settled that any order of the court must be strictly complied with.

2.     For any reason should a party to the order not able to comply with such order, then such party may seek leave of the court to vary the terms of the order.

3.     A party cannot vary the terms of the order unilaterally and simply assert that he is justified in varying the terms of the order.

4.     Such a conduct is unacceptable and no court should justify and support a litigant who prima facie had not complied with an order of court. And, also when he asserts that he is right in not complying with the same order.

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