MAJLIS PEGUAM v. DATO' SERI DR MUHAMMAD SHAFEE ABDULLAH
MAJLIS PEGUAM v. DATO' SERI DR MUHAMMAD SHAFEE ABDULLAH
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
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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
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.
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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
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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,
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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
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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
[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).]
JUDGMENT
Md Raus Sharif PCA:
Introduction
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[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
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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
[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
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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.
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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.
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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
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(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
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.
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[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
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
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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
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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.