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MAJLIS PEGUAM v. DATO' SERI DR MUHAMMAD SHAFEE ABDULLAH

The respondent, a lawyer, gave an interview to a newspaper where he was referred to as a "high profile lawyer" and "top lawyer". Two articles were published containing these remarks and statements by the respondent about his expertise in certain legal areas. The Bar Council alleged this amounted to misconduct by the respondent under the relevant rules. The Disciplinary Committee and Board found the respondent guilty and imposed a fine. The High Court and Court of Appeal ruled differently on appeal. The Federal Court ultimately dismissed the Bar Council's appeal, finding that the remarks were not laudatory and there was no publicity or breach of the rules based on the context and entirety of the articles.

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0% found this document useful (0 votes)
357 views16 pages

MAJLIS PEGUAM v. DATO' SERI DR MUHAMMAD SHAFEE ABDULLAH

The respondent, a lawyer, gave an interview to a newspaper where he was referred to as a "high profile lawyer" and "top lawyer". Two articles were published containing these remarks and statements by the respondent about his expertise in certain legal areas. The Bar Council alleged this amounted to misconduct by the respondent under the relevant rules. The Disciplinary Committee and Board found the respondent guilty and imposed a fine. The High Court and Court of Appeal ruled differently on appeal. The Federal Court ultimately dismissed the Bar Council's appeal, finding that the remarks were not laudatory and there was no publicity or breach of the rules based on the context and entirety of the articles.

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mer
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Majlis Peguam v.

[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 749

A MAJLIS PEGUAM v.
DATO’ SERI DR MUHAMMAD SHAFEE ABDULLAH
FEDERAL COURT, PUTRAJAYA
MD RAUS SHARIF PCA
SURIYADI HALIM OMAR FCJ
B
HASAN LAH FCJ
AZAHAR MOHAMED FCJ
AZIAH ALI FCJ
[CIVIL APPEAL NO: 01(f)-48-08-2015(W)]
29 JULY 2016
C
LEGAL PROFESSION: Practice of law – Misconduct – Rules against publicity –
Newspaper articles on appellant and his profession as an advocate and solicitor –
Allusion to appellant as ‘high profile lawyer’, ‘top lawyer’ et cetera – Whether to
be read in context of entirety of articles – Whether laudatory in nature – Whether
D falling under ‘approved information’ allowed by statute – Whether in breach of rules
against publicity – Legal Profession Act 1976 ss. 94(3)(k) and 94(3)(o) – Legal
Profession (Publicity) Rules 2001 rr. 2, 5(1b)(vi), 15(2), 24
The respondent, an advocate and solicitor, had given an interview to The
Star newspaper about his work and career. Following that, two articles were
E published by The Star where the first article referred to the respondent as ‘a
high profile lawyer’, ‘a top lawyer’ and that ‘people had no difficulty finding
the respondent’s office (which has no signboard) because of the respondent’s
reputation’, whilst the second article adverted to the respondent’s statements
that ‘I can tell you that whenever I am a defence counsel, the AG Chambers
F always send, without a doubt, their best team against me. This is true’ and
‘I am an authority in election law and there are very few of us in this country.
I am also one of the world’s experts on extradition and mutual assistance
cases’. The Bar Council took umbrage at the statements, alleging that they
amounted to misconduct on the part of the respondent within the meaning,
G inter alia, of ss. 94(3)(k) and 94(3)(o) of the Legal Profession Act 1976
(‘LPA’) and rr. 2, 5(1b)(vi), 15(2) and 24 of the Legal Profession (Publicity)
Rules 2001 (‘2001 Rules’), and in the circumstances, lodged a complaint
against the respondent. The Disciplinary Committee (‘DC’), and
subsequently the Disciplinary Board (‘DB’) found the respondent guilty as
alleged, whereof a fine of RM5,000 was imposed on the respondent. The
H
respondent appealed to the High Court, but the appeal was dismissed. It was
the view of the learned judge, in dismissing the appeal, that the two articles
contained laudatory remarks and statements about the respondent and his law
firm which went beyond the scope of ‘approved information’ allowed by the
2001 Rules. On further appeal, the Court of Appeal, however, sided with the
I respondent ruling, essentially, that: (i) the statements in the first article were
the remarks of the journalist interviewing the respondent for which no blame
could be attributed to the respondent; (ii) the statements in the second article
750 Current Law Journal [2016] 8 CLJ

were not laudatory remarks within the meaning of r. 5 or r. 15 of the 2001 A


Rules, and that the respondent’s references to his expertise in election law
and extradition law and mutual assistance in criminal matters could fall
under ‘approved information’ under rr. 2(m) and 2(g) of the 2001 Rules; and
(iii) looking at the statements objectively and in their proper context, there
was no publicity within the meaning of the 2001 Rules. Dissatisfied, the Bar B
Council appealed to the apex court.
Held (dismissing appeal)
Per Md Raus Sharif PCA delivering the judgment of the court:
(1) The interview given by the respondent to the newspaper did not fall C
within the meaning of ‘misconduct’ in s. 94(3) of the LPA. (para 30)
(2) The Court of Appeal was right in finding that the words describing the
respondent as ‘a high profile lawyer’ and ‘a top lawyer’ in the first article
were the journalist’s own remarks. The said remarks reflected the
journalist’s personal opinion, and was something which the respondent D
could not have prevented the journalist from expressing. (para 19)
(3) The fact that the statements were laudatory in itself did not
automatically lead to the conclusion that there had been publicity within
the meaning of the 2001 Rules. The statement must be read within the
context of the entirety of the articles and surrounding circumstances. E
(para 29)
(4) There did not appear to be any evidence to show that the respondent had
solicited the interview or had wanted to publicise himself or his firm.
Although the respondent had control over what he was saying during the
interview, he however had no control over the information provided by F
him that led to the journalist making the perceived laudatory remarks.
The interview was not a feeble attempt to solicit clients, tout or
advertise services and the respondent had not publicised himself or his
firm in a manner that infringed the 2001 Rules. (paras 20 & 21)
G
(5) The statements in the second article were not laudatory remarks within
the meaning of r. 5 or r. 15 of the 2001 Rules. The statements were made
in the course of an extensive, long interview and in response to questions
relating to the criminal justice system and the respondent’s preference
insofar as work was concerned. Read in that light, the references to his
expertise in election law and extradition law and mutual assistance in H
criminal matters could to a large extent fall under ‘approved
information’ under r. 2(m) and 2(g) of the 2001 Rules. (para 25)
(6) The High Court, the DB and the DC had failed to appreciate the context
in which the respondent’s comments and explanations were made in the
I
second article, which were in reply to specific questions posed by the
reporter and by way of explanation to the areas that the respondent was
involved in, and the fact that it fell within the scope of ‘approved
Majlis Peguam v.
[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 751

A information’ under rr. 2(m) and 2(g) of the 2001 Rules. Looking at the
statements objectively and in the context in which they were made, they
were not laudatory and there was no publicity. The comments about the
respondent’s areas of expertise were more in the nature of general
comments across the board, justified and not misleading. The
B respondent accordingly did not breach the 2001 Rules. (paras 26-28)
Bahasa Malaysia Headnotes
Responden, seorang peguam bela dan peguam cara, telah memberi satu
temuramah kepada akhbar The Star mengenai kerja dan kerjayanya.
C
Berikutnya, dua artikel telah disiarkan dalam The Star di mana artikel
pertama merujuk kepada responden sebagai ‘seorang peguam berprofil
tinggi’, ‘seorang peguam terkemuka’ dan bahawa ‘orang ramai tiada masalah
untuk mencari pejabat responden (yang tidak mempunyai papan tanda)
kerana reputasi responden’, sementara artikel kedua merujuk kepada
kenyataan responden bahawa ‘saya boleh memberitahu anda bahawa
D
bilamana saya menjadi peguam bela, Jabatan Peguam Negara, tanpa
keraguan, sentiasa menghantar pasukan terbaik mereka untuk menentang
saya. Ini memang benar’ dan ‘saya adalah autoriti undang-undang pilihan
raya dan hanya beberapa orang seperti kami di negara ini. Saya juga adalah
salah seorang pakar dalam bidang ekstradisi dan kes-kes bantuan salingan di
E peringkat antarabangsa’. Majlis Peguam yang terkilan dengan kenyataan-
kenyataan mendakwa bahawa wujud salah laku di pihak responden antaranya
di bawah ss. 94(3)(k) dan 94(3)(o) Akta Profesion Undang-Undang 1976
(‘APU’) and kk. 2, 5(1b)(vi), 15(2) and 24 Kaedah-Kaedah Profesion
Undang-Undang (Publisiti) 2001 (‘Kaedah 2001’), dan oleh yang demikian,
F telah membuat aduan terhadap responden. Jawatankuasa Disiplin (JD’), dan
kemudiannya Lembaga Disiplin (‘LD’) mendapati responden bersalah
seperti yang dipertuduhkan, dan hukuman denda sebanyak RM5,000 telah
dikenakan terhadap responden. Responden merayu ke Mahkamah Tinggi,
namun rayuannya ditolak. Adalah menjadi pandangan Yang Arif Hakim,
G
dalam menolak rayuan, bahawa kedua-dua artikel mengandungi kenyataan-
kenyataan yang bersifat memuji diri responden dan firma guamannya, pujian-
pujian mana adalah melangkaui skop ‘maklumat dibenarkan’ seperti yang
diizin oleh Kaedah 2001. Bagaimanapun, di rayuan selanjutnya, Mahkamah
Rayuan memihak kepada responden sekaligus memutuskan, secara
pentingnya, bahawa: (i) kenyataan-kenyataan dalam artikel pertama adalah
H
kenyataan yang dibuat oleh wartawan yang menemuramah responden dan
responden tidak boleh dipersalahkan baginya; (ii) kenyataan-kenyataan
dalam artikel kedua tidak bersifat memuji diri dalam erti kata k. 5 atau
k. 15 Kaedah 2001, dan bahawa rujukan yang dibuat responden mengenai
kepakarannya dalam bidang undang-undang pilihan raya dan bantuan
I salingan dalam hal-hal jenayah boleh sahaja terangkum di bawah ‘maklumat
dibenarkan’ di bawah kk. 2(m) dan 2(g) Kaedah 2001; dan (iii) melihat
752 Current Law Journal [2016] 8 CLJ

kepada kenyataan-kenyataan secara objektif dan dalam konteks ianya dibuat, A


tidak wujud publisiti seperti yang dimaksudkan Kaedah 2001. Merasa tidak
puas hati, Majlis Peguam merayu ke Mahkamah Tertinggi.
Diputuskan (menolak rayuan)
Oleh Md Raus Sharif PMR menyampaikan penghakiman mahkamah:
B
(1) Temuramah yang diberikan responden kepada akhbar tidak termasuk ke
dalam maksud ‘salah laku’ seperti yang ditakrif oleh s. 94(3) APU.
(2) Mahkamah Rayuan betul dalam mendapati bahawa perkataan-perkataan
yang memperihalkan responden sebagai ‘seorang peguam berprofil
tinggi’ dan ‘seorang peguam terkemuka’ dalam artikel pertama adalah C
perkataan wartawan itu sendiri. Perkataan tersebut mencerminkan
pandangan peribadi si wartawan, dan adalah sesuatu yang di luar
kemampuan responden untuk menghalangnya.
(3) Fakta bahawa kenyataan-kenyataan bersifat memuji, semata-mata itu
sahaja, tidak secara automatik membawa kepada konklusi bahawa wujud D
publisiti seperti yang ditakrif oleh Kaedah 2001. Kenyataan hendaklah
dibaca dalam konteks keseluruhan artikel dan hal keadaan di
sekelilingnya.
(4) Tiada keterangan yang kelihatan menunjukkan bahawa responden
E
meminta untuk ditemuramah atau ingin menggembar-gemburkan
dirinya atau firmanya. Walaupun responden mempunyai kawalan atas
apa yang dikatakannya semasa ditemuramah, beliau bagaimanapun tiada
kawalan atas maklumat yang diberikannya yang membawa kepada
wartawan membuat kenyataan yang dikatakan memuji diri tersebut.
Temuramah bukan satu percubaan lemah untuk menarik klien, memikat F
atau menawar perkhidmatan dan responden tidak menggembar-
gemburkan dirinya atau firmanya secara yang melanggari Kaedah 2001.
(5) Kenyataan-kenyataan dalam artikel kedua bukan kenyataan memuji diri
seperti yang dimaksud k. 5 atau k. 15 Kaedah 2001. Kenyataan-
G
kenyataan dibuat sewaktu berlangsungnya satu temuramah yang panjang
lebar dan sebagai jawapan kepada soalan-soalan mengenai sistem
keadilan jenayah dan keutamaan responden setakat yang berkaitan
dengan kerjanya. Dibaca dari sudut ini, rujukan kepada kepakaran
beliau dalam bidang undang-undang pilihan raya dan undang-undang
pengusiran serta bantuan salingan dalam hal-hal jenayah sebahagian H
besarnya boleh dirangkumi oleh perkataan ‘maklumat dibenarkan’ di
bawah k. 2(m) dan 2(g) Kaedah 2001.
(6) Mahkamah Tinggi, LD dan JD gagal menilai konteks di mana komen-
komen dan penjelasan dalam artikel kedua dibuat oleh responden, yang
I
mana ia adalah jawapan kepada soalan-soalan spesifik yang diajukan
oleh wartawan dan juga merupakan penjelasan responden berkaitan
Majlis Peguam v.
[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 753

A bidang undang-undang yang diceburinya, serta fakta bahawa semua itu


terangkum di bawah skop ‘maklumat dibenarkan di bawah kk. 2(m) dan
2(g) Kaedah 2001. Melihat kepada kenyataan secara objektif serta
konteks ianya dibuat, kenyataan-kenyataan berkenaan tidak bersifat
memuji diri dan tidak wujud apa-apa publisiti. Komen-komen mengenai
B bidang kepakaran responden adalah bersifat komen am, wajar dan tidak
mengelirukan. Responden dengan itu tidak melanggari Kaedah 2001.
Case(s) referred to:
Gana Muthusamy v. Tetuan LM Ong & Co [1998] 4 CLJ 878 CA (refd)
Keith Sellar v. Lee Kwang And Tennakoon V Lee Kwang [1980] 1 LNS 36 FC (refd)
C Merchant v. Law Society of Saskatchewan [2002] 8 WWB 214 (refd)
Re A Solicitor (No 2) [1923] 93 LJKB 761 (refd)
Re A Solicitor [1969] 3 All ER 610 (refd)
Legislation referred to:
Legal Profession Act 1976, ss. 94(3)(k), (o), 103E
D Legal Profession (Practice and Etiquette) Rules 1978, r. 48
Legal Profession (Publicity) Rules 2001, rr. 2(g), (m), 5(1)(b)(iv), (vi), 15(1)(b), (2),
24
For the appellant - Muhammad Shafee Abdullah, Sarah Abishegam, Farhan Shafee, Wee
Yeong Kang & Peremanathan Gunasegaran; M/s Shafee & Co
For the respondent - Arthur Wang Ming Way, Wong Chooi Mey & Nurufarhina;
E
M/s Arthur Wang, Lian & Assocs

[Editor’s note: For the Court of Appeal judgment, please see Dato’ Seri Dr Muhammad
Shafee Abdullah v. Majlis Peguam [2015] 7 CLJ 705 (affirmed).]

Reported by Wan Sharif Ahmad


F

JUDGMENT
Md Raus Sharif PCA:
Introduction
G
[1] This is the Bar Council’s appeal against the decision of the Court of
Appeal dated 23 July 2015, wherein the Court of Appeal reversed the order
of the High Court Judge. The Court of Appeal found that the respondent, an
advocate and solicitor did not breach the Legal Profession (Publicity) Rules
2001. In doing so, the Court of Appeal ordered that the fine of RM5,000
H
imposed against the respondent by the Bar Council’s Disciplinary Board to
be refunded.
[2] We heard the appeal on 9 March 2016 and dismissed the same with
costs of RM50,000. We now give our reasons.
I Facts
[3] Briefly, the facts of this case are these. On 23 September 2010, the Bar
Council wrote to the Disciplinary Board complaining that the respondent
appears to have breached the Legal Profession (Publicity) Rules 2001 (2001
754 Current Law Journal [2016] 8 CLJ

Rules). The complaint was based on an interview given by the respondent A


that appeared in two articles in the Star Newspaper. The first article entitled
“Counsel Rests His Case” appeared in the Sunday Star on 27 September 2009
(the first article) and the second article entitled “Within the Letter of the
Law” appeared in the Star Online on 5 October 2009 (second article).
B
[4] The Bar Council’s complaint against the respondent was that both
articles contained statements which according to the Bar Council amounted
to misconduct under ss. 94(3)(k) and 94(3)(o) of the Legal Profession Act
1976, rr. 2, 5(1)(b)(vi), 15(2) and 24 of the 2001 Rules, Ruling 14.01(2) of
the Rules and Rulings of the Bar Council 2007 and r. 48 of the Legal
Profession (Practice and Etiquette) Rules 1978. C

[5] The Bar Council was of the view that the first article contained
statements which was tantamount to a breach of the 2001 Rules. Briefly, the
complaints were as follows:
(a) the article referred to the respondent as a “high profile lawyer” and a D
“top lawyer”; and
(b) the article stated that “people had no difficulty finding the respondent’s
office (which has no signboard) because of the respondent’s reputation”.
[6] As far as the second article was concerned, the Bar Council’s complaint
E
was that it contained several personal statements such as the following:
(a) the cases handled by the respondent eg, the Ayer Molek case;
(b) the judges who conducted the cases handled by the respondent; and
(c) the use of laudatory remarks wherein the respondent stated the following: F
(i) “I can tell you that whenever I am a defence counsel, the AG’s
Chambers always sends, without doubt, their best team against me.
This is true.”; and
(ii) “I am an authority in election law and there are very few of us in
G
this country. I am also one of the world’s experts on extradition and
mutual assistance cases.”
[7] The Disciplinary Committee (DC) which conducted the inquiry into
the complaints concluded that the respondent had in his interview with
the journalist publicised himself and his firm of solicitors in breach of the H
2001 Rules specifically r. 2, r. 5(1)(b)(vi), r. 15(2) and r. 24, r. 48 of the
Legal Profession Practice and Etiquette Rules 1978; and ruling 14.01 of the
Rules and Rulings of the Bar Council 2007. The DC recommended that a fine
of RM5,000 be imposed on the respondent.
[8] The Disciplinary Board (DB) after considering the complaint and I
findings of the DC affirmed the order that a fine of RM5,000 be imposed on
the respondent. The respondent was informed of the decision by the DB by
a letter dated 15 October 2012.
Majlis Peguam v.
[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 755

A [9] The respondent appealed to the High Court against the decision of the
DB under s. 103E of the LPA 1976. On 10 January, 2014 the High Court
dismissed the respondent’s appeal.
Decision Of The High Court
B [10] In dismissing the appeal, the learned High Court Judge held that the
two articles contained laudatory remarks and statements about the respondent
and his firm of solicitors which were beyond the scope of “approved
information” allowed by the 2001 Rules. The learned judge also held that the
opinion of the Bar Council under r. 15(1)(b) of the 2001 Rules is the primary
C
consideration insofar as it relates to the question as to whether what was said
at the interview will reasonably give rise to an inference that the respondent
was attempting to publicise his practice. The learned judge further held that
it is the respondent’s duty under r. 24 of the 2001 Rules to rectify and
withdraw such publication once he became aware of it. No evidence was led
to show that the respondent had taken any action to ensure as such.
D
Decision Of The Court Of Appeal
[11] The Court of Appeal in allowing the respondent’s appeal held as
follows:
(i) the statements must be read in the context of the articles as a whole.
E
In this instance, the words describing the respondent as a top and high
profile lawyer in the first article were the journalist’s own remarks;
as were the journalist’s remarks relating to people finding the respondent’s
office without any signboard because of the respondent’s reputation. The
said remarks reflected the journalist’s personal opinion. It was something
F which the respondent could not have prevented the journalist from
expressing. There did not appear to be any evidence to show that the
respondent solicited the interview or that the respondent wanted to
publicise his practice or his firm. In the circumstances, the words in
question could not be ascribed to the respondent as being laudatory and
G in contravention of r. 5 of the 2001 Rules;
(ii) the two statements in the second article were made with respect to the
scope of the journalist’s questions. The statements in question were not
laudatory remarks within the meaning of rr. 5 or 15 of the 2001 Rules.
The statements were made in the course of an extensive long interview
H and in response to questions about the criminal justice system and the
respondent’s preference insofar as work was concerned. Read in that
light, the references to his expertise in election law and extradition law
and mutual assistance in criminal matters could to a large extent fall
under “approved information” under rr. 2(m) and 2(g) of the 2001 Rules;
I
(iii) the phrase “in the opinion of the Bar Council” in r. 15 of the 2001 Rules
should not be construed narrowly. It is primarily for the members of the
Bar to decide what amounts to misconduct and this is reflected in the
756 Current Law Journal [2016] 8 CLJ

written rules of the legal profession. In this regard, it is for the Bar A
Council, the DB or DC to interpret the provisions of the rules. The final
arbiter on the interpretation of the rules is the court. In interpreting the
provisions of the rules, the court will apply the objective test. The court
will place itself as far as possible as members of the Bar in order to
determine whether there is any breach of the rules; B

(iv) the fact that the statements are laudatory in itself does not automatically
lead to the conclusion that there has been publicity within the meaning
of the 2001 Rules. The statements must be read within the context of the
entirety of the articles and surrounding circumstances. The other factors
which the DC and DB ought to have considered were: (i) the intention C
of the respondent with respect to the fact of what the journalist had asked
in her scope of questioning him; (ii) the intention of the journalist as to
the purpose of the interview; and (iii) the general message that came out
from reading the articles; and
D
(v) looking at the statements in question objectively and in the context of
which they were made, there was no publicity within the meaning of the
2001 Rules. Accordingly the appellant did not breach the 2001 Rules.
Our Findings
[12] The key legal issue arising in this appeal was whether the respondent E
had publicised himself and his firm of solicitors in a manner that infringes
the LPA 1976 and the 2001 Rules.
[13] It was the Bar Council’s stance that the respondent by publicising
himself and his firm of solicitors had committed a misconduct pursuant to
s. 94(3)(k) and (o) of the LPA. “Misconduct” is defined under s. 94(3) of the F
LPA 1976 as follows:
(3) For the purposes of this Part, “misconduct” means conduct or omission
to act in Malaysia or elsewhere by an advocate and solicitor in a
professional capacity or otherwise which amounts to grave impropriety
and includes- G

(a) conviction of a criminal offence which makes him unfit to be


a member of his profession;
(b) breach of duty to a court including any failure by him to comply
with an undertaking given to a court;
H
(c) dishonest or fraudulent conduct in the discharge of his duties;
(d) breach of any rule of practice and etiquette of the profession
made by the Bar Council under this Act or otherwise;
(e) being adjudicated a bankrupt and being found guilty of any of
the acts or omissions mentioned in paragraph (a), (b), (c), (e), (f), I
(h), (k) or (1) of section 33(6) of the Bankruptcy Act 1967;
Majlis Peguam v.
[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 757

A (f) the tendering or giving of any gratification to any person for


having procured the employment in any legal business of himself
or any other advocate and solicitor;
(g) directly or indirectly procuring or attempting to procure the
employment of himself or any other advocate and solicitor through
B or by the instruction of any person to whom any remuneration for
obtaining such employment has been given by him or agreed or
promised to be so given;
(h) accepting employment in any legal business through a tout;
(i) allowing any unauthorised person to carry on legal business in
C his name without his direct and immediate control as principal or
without proper supervision;
(j) the carrying on by himself, directly or indirectly, of any profession,
trade, business or calling which is incompatible with the legal
profession or being employed for reward or otherwise in any such
D profession, trade, business or calling;
(k) the breach of any provision of this Act or of any rules made
thereunder or any direction or ruling of the Bar Council;
(1) the disbarment, striking off, suspension or censure in his
capacity as a legal practitioner in any other country or being guilty
E of conduct which would render him to be punished in any other
country;
(m) the charging, in the absence of a written agreement, in respect
of professional services rendered to a client, of fees or costs which
are grossly excessive in all the circumstances;
F (n) gross disregard of his client's interests; and
(o) being guilty of any conduct which is unbefitting of an advocate
and solicitor or which brings or is calculated to bring the legal
profession into disrepute.
[14] Under s. 94 of the LPA 1976 the DB can make the following orders
G
upon finding of guilty of an advocate and solicitor for misconduct.
94. Power of Disciplinary Board to strike off the Roll, suspend for
misconduct, etc.
(1) All advocates and solicitors shall be subject for the purposes of all
H disciplinary actions to the control of the Disciplinary Board.
(2) Any advocate and solicitor who has been guilty of any misconduct
shall be liable to one or more of the following penalties or punishments:
(a) to be struck off the Roll;
(b) to be suspended from practice for any period not exceeding five
I
years;
(c) to be ordered to pay a fine not exceeding fifty thousand ringgit; or
(d) to be reprimanded or censured.
758 Current Law Journal [2016] 8 CLJ

[15] “Publicise” according to r. 2 of the 2001 Rules means to make known A


to the public through any form of advertisement. Pertinent to note that
publicity per se does not amount to a “misconduct” within the ambit of the
LPA 1976. The 2001 Rules permits publicity with conditions that any form of
publicity by an advocate and solicitor shall only contain “approved information”.
Rule 2 of the 2001 Rules define the terms “approved information” and B
“publicise” as follows:
“approved information” means any one or more of the following:
(a) the name of the firm;
(b) the address of the firm; C
(c) the telecommunication numbers of the firm;
(d) the business hours of the firm;
(e) the year in which the firm or its predecessor in title was established;
(f) the merger or association of that firm with any other firm or law D
organisation, whether in Malaysia or elsewhere;
(g) historical data or the firm or its predecessor in title;
(h) the designation “Advocate and Solicitor” or “Advocates and Solicitors”;
(i) the designation “Commissioner for Oaths” or “Commissioners for E
Oaths”;
(j) the designation “Notary Public” or “Notaries Public”;
(k) the designation “Agent for Trademarks and Patents” or “Agents for
Trademarks and Patents”;
F
(1) the designation “consultant” or “consultants”;
(m) the area of practice engaged in by the firm or by the Advocate and
Solicitor or Advocates and Solicitors practicing in the firm;
(n) the language proficiency of the Advocate and Solicitor or Advocates
and Solicitors practicing in the firm; G
(o) the name of the Advocate and Solicitor or Advocates and Solicitors
practicing in the firm and whether he is a sole proprietor, partner,
legal assistant or consultant in the firm;
(p) the year of admission as an advocate and solicitor of the Advocate
and Solicitor or Advocates and Solicitors practicing in the firm and H
whether he has been admitted as a practitioner in another jurisdiction;
(q) the academic and professional qualifications of the Advocate and
Solicitor or Advocates and Solicitors practicing in the firm, and any
award, decoration, merit, or title conferred upon him or them; and
(r) such other information which has had the prior written approval of I
the Bar Council;
“publicise” means to make known to the public through any form of
advertisement, including an advertisement-
Majlis Peguam v.
[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 759

A (a) published in any newspaper, journal, magazine, book, booklet,


directory or other publication;
(b) contained in any letter, brochure, bulletin, business card, leaflet,
nameplate, newsletter, notice, pamphlet, or letterhead or stationery
used for professional purposes; or
B (c) placed in, stored in or transmitted through any electronic media
accessible to the public or to any section of the public.
[16] Rule 5 of the 2001 Rules narrows down the limits of publicity which
an advocate and solicitor may indulge. Rule 5 provides as follows:
C 5. Publicity within Malaysia
(1) An Advocate and Solicitor who publicises his practice or the practice
of his firm within Malaysia-
(b) shall not in the publicity-
(iv) state anything that would be construed as offering any
D
inducement to, or imposing any duress, upon any person as
a means of obtaining professional business for himself of his
firm;
[17] The decorum relating to an interview with the press, radio and
television is provided for under r. 15 of the 2001 Rules as follows:
E
15. Interview with press, radio and television.
(1) An Advocate and Solicitor may, at the request of the press, radio,
television or other media, consent to be interviewed, whether in his
professional or private capacity, but-
F (a) The interview shall not be in relation to any matter or be given
with such frequency; or
(b) At the interview nothing must be said or done by him, as will
reasonably give rise, in the opinion of the Bar Council, to an
inference that he is attempting, through the interview, to
G publicise his practice or the practice of his firm in a manner
inconsistent with these Rules.
(2) Where and Advocate and Solicitor is interviewed by the press, radio,
television or other media, he shall not allow any information
pertaining to himself or his firm, except approved information, to be
publicised.
H
[18] Premised on the above, it was the Bar Council’s stance that references
to the respondent as a high profile lawyer and a top lawyer in the first article
either taken in isolation or together is in breach of r. 5(1)(b)(iv) which
expressly prohibits an advocate and solicitor from providing information that
I would be construed as an inducement for professional means. Learned
counsel submitted that the respondent, being the subject matter of the
interview which led to the writing of the first article, at all times had control
760 Current Law Journal [2016] 8 CLJ

over what he was saying when he was answering the questions posed to him A
by the journalist during the interview. Thus, it was the information provided
by him that led to the journalist making such laudatory remarks.
[19] With respect we disagreed with the Bar Council’s contention on this
issue. In this regard, we agreed with the finding of the Court of Appeal that
B
the words describing the respondent as a high profile lawyer and a top lawyer
in the first article were the journalist’s own remarks. We were of the view that
the said remarks reflected the journalist's personal opinion. It was something
which the respondent could not have prevented the journalist from expressing.
[20] Further, we were of the view that there did not appear to be any C
evidence to show that the respondent solicited the interview or that the
respondent wanted to publicise his practice or his firm. The references made
in the first article to “a high profile lawyer, a top lawyer” and the fact that
“people had no difficulty finding the respondent's office (which has no
signboard) because of the respondent’s reputation” were not adjectives used
D
by the respondent to describe himself. These were attributed by the journalist
in the way she used her language and her journalistic skills to express certain
comments and her observations. In this regard, the context of the article must
be viewed as a whole and balanced against mere catch phrases which all form
part of writing skills of the journalist concerned.
E
[21] We were of the view that the respondent although at all times had
control over what he was saying when he was answering the questions posed
to him by the journalist during the interview, he, however, had no control
over the information provided by him that led to the journalist making such
perceived laudatory remarks. The said articles were in the nature of “featured
F
articles” on the career and lifestyle of the respondent. On that basis, we agreed
with the respondent that it was not a feeble attempt to solicit clients, tout or
advertise his services. In our judgment, we found that the interview given by
the respondent had been taken totally out of proportion and context by the
Bar Council. In the circumstances, we were unanimous that the respondent
had not publicised himself or his firm of solicitors in a manner that infringed G
the 2001 Rules.
[22] Now we move on to the second article. To appreciate the context in
which the allegations were made against the respondent, we find it necessary
to quote the relevant excerpt from the second article which is as follows:
H
Q: Sometimes the police does shoddy work and the judge has no
choice but to acquit. How do you feel about that?
A: In those cases I have no problem with my conscience because the
prosecution just didn’t prove it. It is unfortunate and in fact regretful.
The criminal justice system can only work well if both sides are
I
equally strong and equally competent.
Majlis Peguam v.
[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 761

A In an adversarial practice, there are opposing sides and the judge is


the referee. If the matter is well projected to the judge, he makes
the right decision. But if you find that too often one side is too
weak, then there can be a problem getting justice.
I can tell you that whenever I am the defence counsel, the AG’s
B Chambers always sends, without doubt, their best team against
me. This is true.
But I have got no problem with that because I have done the work
and it just means I have got to work a lot harder.
...
C
Q: You take on cases ranging from murder, corruption, to defending
the underworld “kings”. Do you have a preference?
A: If it is an unusual murder where the facts are so unusual or the
personalities involved are interesting that it becomes an interesting
case. Similarly with corruption cases, it there are high profile
D personalities involved and the factual circumstances are so weird, it
becomes an interesting case.
I remember long time ago when I was already a high profile
prosecutor, the AG Abu Talib asked me to prosecute Sarimah’s
former husband for being a peeping tom because he kept going into
E UM with a video camera.
I thought it was an interesting case because of the personalities
involved. If you ask me which are my favourite cases, I like those
with constitutional dimensions.
All criminal cases have constitutional dimensions. But I do a lot of
F civil work. People don’t know what I do 7 civil work and only 30%
is criminal work. The criminal work is reflected back as it gets
reported in the press people think “Oh Shafee does nothing but
criminal work.” But it’s not true. I do more civil work.
I am authority on election law and there are very few of us in this
G country. I am also one of the world’s experts on extradition and
mutual assistance cases.
There are five or six of us in the world including my mentor- QC
Colin Nichols (of the Nichols Brothers). I do most of the extradition
cases in Malaysia.
H [emphasis added]
[23] The Bar Council took the stand that the above statements which we
have lent emphasis to were laudatory in nature. The Bar Council submitted
that the respondent had allowed information beyond the scope of “approved
information”, as defined under r. 2 of the 2001 Rules, to be publicised with
I regard to his practice and his firm. The said rule expressly prohibits an
advocate and solicitor when engaged in an interview with the press, radio or
television from divulging information other than the “approved information”.
762 Current Law Journal [2016] 8 CLJ

As such the Bar Council argued that the second article which is a direct publication A
of statements and remarks made by the respondent were tantamount to a
breach of the 2001 Rules.
[24] The respondent took a convergent view and submitted that the two
statements must be read in the context of the second article as a whole. He
B
submitted that his references to judges who had presided over his previous
cases were given in a neutral and totally non-contemptuous way. According
to him, the interview was to address certain public perceptions that were
wrongly held and generally educational to the general public. In fact, the
respondent argued that the reference made as to his expertise in Election Law
and Extradition Law and Mutual Assistance in Criminal Matters can to a C
large extent fall under “approved information” under rr. 2(m) and 2(g) of the
2001 Rules. The respondent further argued that by merely mentioning one
is a specialist or has expertise in any area of the law does not amount to
publicity prohibited under r. 5 of the 2001 Rules. In this regard, the respondent
referred to numerous instances to support his argument that no action had D
been taken by the Bar Council against other advocates and solicitors whose
practice and firms are being lauded and praised in their newsletters and
websites.
[25] We have perused through the impugned article. After doing so, we
found that the statements in question were made with respect to the scope of E
the journalist’s questions. We were unanimous in our view that the statements
in question were not laudatory remarks within the meaning of rr. 5 or 15 of
the 2001 Rules. The statements were made in the course of an extensive long
interview and in response to questions relating to the criminal justice system
and the respondent’s preference insofar as work was concerned. Read in that F
light, the references to his expertise in election law and extradition law and
mutual assistance in criminal matters could to a large extent fall under
“approved information” under rr. 2(m) and 2(g) of the 2001 Rules.
[26] Thus, for the reasons alluded above, we found with respect that the
High Court, the DB and the DC had failed to appreciate the context in which G
the respondent’s comments and explanations were made in the second article
were in reply to the specific questions posed by the reporter and by way of
explanation to the areas that the respondent was involved in especially in the
fields of election law, extradition and mutual assistance cases and the fact that
it fell within the scope of “approved information” under rr. 2(m) and 2(g) of H
the 2001 Rules.
[27] In our judgment, looking at the statements in question objectively and
in the context of which they were made, we held the view that there was no
publicity and the statements in question were not laudatory. The comments
about the respondent’s areas of expertise are more in the nature of general I
comments across the Board, justified and not misleading.
Majlis Peguam v.
[2016] 8 CLJ Dato’ Seri Dr Muhammad Shafee Abdullah 763

A [28] Further, it is important to bear in mind that the interview was not
solicited by the respondent. The complaint against the respondent concerns
an interview given to the Star Newspaper which is to a large extent, a personal
account about his career, described by the reporter as “controversial” in
relation to various “high profile” and “controversial cases” which he had
B uncannily won in courts. Looking at the entire context of the article, we found
that the information the respondent spoke about did fall within the catch of
“approved information” under the 2001 Rules. Accordingly, we were of the
view that the respondent did not breach the 2001 Rules.
[29] We were minded of the well-settled principle that as a general rule,
C the policy is not to interfere in matters of professional discipline, but to leave
matters of discipline to the body entrusted by Parliament to regulate and
discipline members of the profession. All that is required is that the
disciplinary body acts fairly in carrying out its duties, and the hearing
conducted thoroughly with due deliberation and understanding given to the
D facts of the complaint. Unless the disciplinary committee in the exercise of
its powers can be shown to have erred in principle, or to have overlooked,
misconceived, or disregarded some material matter of fact, or to have failed
to act judicially, the court ought not interfere, except in the rarest of cases.
This principle has been applied consistently by our courts. (See cases of Re
E
A Solicitor (No 2) [1923] 93 LJKB 761, Re A Solicitor [1969] 3 All ER 610,
Keith Sellar v. Lee Kwang And Tennakoon V Lee Kwang [1980] 1 LNS 36;
[1980] 1 MLRA 461; Gana Muthusamy v. Tetuan LM Ong & Co [1998] 4 CLJ
878; [1998] 2 MLRA 208; Merchant v. Law Society of Saskatchewan [2002] 8
WWB 214). However, based on the facts and circumstances surrounding this
case we were of the view that the fact that the statements were laudatory in
F
itself did not automatically lead to the conclusion that there had been
publicity within the meaning of the 2001 Rules. The statements must be read
within the context of the entirety of the articles and surrounding circumstances.
Conclusion
G [30] In the final analysis we were of the considered view that looking at the
statements in question objectively and in the context they were made, there
was no publicity within the meaning of the 2001 Rules. The interview given
by the respondent to the Star Newspaper did not fall within the meaning of
“misconduct” within s. 94(3) of the LPA. Thus, we agreed with the decision
H of the Court of Appeal.
[31] For the reasons aforesaid, we dismissed the appeal with costs.
[32] As for costs, learned counsel representing the Bar Council submitted
that no order should be made against the Bar Council as the Bar being a
professional body was merely performing its regulatory and statutory duties
I
as prescribed by the law. The respondent on the other hand had prayed for
a punitive costs to be awarded against the Bar Council and in the course of
his submissions asked for costs to be set at RM300,000.
764 Current Law Journal [2016] 8 CLJ

[33] We had carefully deliberated on the issue of costs. After taking into A
consideration, the surrounding circumstances of this case, we were of the
considered view that costs in the amount of RM50,000 would suffice. We
took into consideration the reputation and legal career of the respondent over
an article published some seven years ago. To state the respondent’s predicament
in a proverbial sense: “the sword of the Damocles was hanging on the B
respondent’s head for the last seven years”. We took into account of the
agony the respondent had to undergo for the last seven years to defend the
findings made against him by the DC and the DB in subsequently fighting
his case in the High Court, the Court of Appeal and finally before this court.
Whilst we were minded of the fact that the Bar Council was merely C
performing its statutory duties, one must not lose sight of the fact that this
was a matter of considerable importance in that it involved the professional
reputation of the respondent. The respondent obviously had incurred costs
in protecting his reputation and restoring the same. The “getting up”
involving extensive legal research was evident from the submissions filed
D
before the High Court, the Court of Appeal and this court. Given that this
was the first case which was decided on the issue of publicity within the 2001
Rules, we found that the sum of RM50,000 to be fair and reasonable costs.

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