Litigation & Court Procedure

Disciplinary Board's Decision clearing Lawyer of Misconduct upheld by the Federal Court

Date: 29 March 2019; Type: Legal News; Source: Bernama

PUTRAJAYA, Mar 29 (Bernama) - The Federal Court today upheld the decision of the Advocates and Solicitors Disciplinary Board (DB) and two lower courts, clearing lawyer Tan Sri Cecil Abraham of professional misconduct. A five-man bench led by Chief Justice Tan Sri Richard Malanjum unanimously dismissed the Bar Council's appeal.Chief Judge of Sabah and Sarawak, Datuk Seri David Wong Dak Wah who delivered the court's verdict said based on the circumstances, a reasonable tribunal would have come to the same conclusion that Abraham was not guilty of misconduct.

He said the standard of proof was beyond reasonable doubt as it concerned the misconduct of a solicitor.

"It had not been shown to us that there was a failure by the Disciplinary Board in acting fairly and judicially in carrying out its duty," he said, adding that the appeal did not have merit.

Justice Wong said the Federal Court also found that there was no blatant error in the application of law.

The appeal was heard on Nov 19, last year before Malanjum, Wong and Federal Court judges Tan Sri Ramly Ali, Datuk Mohd Zawawi Salleh and Datuk Seri Balia Yusof Wahi.

However, the judgment was pronounced today by a four-member bench pursuant to Section 78(1) of the Courts of Judicature Act as Justice Balia had retired.

Abraham's counsel Rishwant Singh requested the court to impose RM150,000 in costs but the court agreed with the Bar Council’s lawyer Datuk Bastian Pius Vendargon that no costs should be awarded as the Bar was merely performing its statutory function.

A misconduct complaint was filed against Abraham for allegedly drafting the second statutory declaration of private investigator P. Balasubramaniam (who died of a heart attack in March 2013) who was a prosecution witness in the murder case of Mongolian woman, Altantuya Shaariibuu.

The hearing of the complaint against Abraham by the Disciplinary Committee commenced on Feb 27, 2014 and ended on February 7, 2015.

In March 2016, the Disciplinary Board affirmed the Disciplinary Committee’s findings and recommendation, which found there was no cause for disciplinary action against the senior lawyer.

The Bar Council subsequently filed an appeal through an originating summons on March 11, 2016, seeking to set aside the Disciplinary Board’s decision.

However, the Bar Council lost its case in the High Court in 2016 and at the Court of Appeal in 2018.

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