A consideration of Thavananthan a/l Balasubramaniam v Majlis Peguam Negara [2010] 3 MLJ 316 with Teoh Hooi Leong v Bar Council, Malaysia [1991] 2 MLJ 190 which relate to an application to be restored to the Rolls of the Advocate and Solicitor of the High Court of Malaya after being convicted on a corruption charge.

John Collier, Old Couple Cheated By Lawyer

On 25 August 1989, Thavanathan a/l Balasubramaniam was admitted as an advocate and solicitor to the High Court of Malaysia. He did not join private practise but joined the judicial and legal service where he was appointed as a Magistrate for the Kuala Lumpur Magistrates Court on 1 December 1989. Before even reaching his third year, on 28 November 1992 he was charged for soliciting and accepting corrupt money under sections 3(a)(i) and 4(a) of Prevention of Corruption Act 1961 (after this referred to as “PCA61”) respectively, both of which attract a maximum sentence of 5 years imprisonment and/or a fine of RM 10,000.00.

Thavananthan was acquitted of the first charge of soliciting. On 25 April 1994, after many appeals, the High Court allowed the prosecution’s appeal against the second charge of accepting corrupt money and sentenced him to 3 years with a fine of RM 5,000.00, which if he defaults would attract another 12 months imprisonment. The Supreme Court dismissed his appeal but reduced his sentence to just 3 years imprisonment. On 20 March 1999, Thavananthan completed his sentence.

Soon after his release he applied for his annual practising certificate from the Bar Council who granted his application for the year 1999 without prejudice to lodge a complaint to the Disciplinary Board. On 29 June 1999, the Bar Council lodged a complaint against Thavananthan. At that time until about the time the Disciplinary Board finally made its decision on 12 June 2002, Thavananthan was practising at Messrs. Ananthan and Partners in Melaka. They decided to strike him off the Rolls of Advocate and Solicitors of the High Court of Malaya (commonly referred to as “the Rolls”) on 12 June 2002.

Thavananthan appealed to the High Court which dismissed his appeal on 24 March 2003. His appeal to the Federal Court was dismissed on 30 October 2003.

On 5 July 2005, more than 6 years after he served his sentence, he applied vide section 107 of the Legal Profession Act 1976 (‘LPA76) to be restored to the Rolls. Subsections 107(1) – (3) are of application and so reproduced below for ease of reference:

(1) The High Court may, if it thinks fair and reasonable, at any time order the Registrar to restore to the Roll the name of an advocate and solicitor which has been removed from, or struck off, the Roll.

(2) Any application that the name of an advocate and solicitor be restored to the Roll shall be by originating motion supported by affidavit, before the High Court.

(3) Notice of the motion shall be served on the Bar Council which shall be represented at the hearing of the motion and shall place before the Court a report which shall include copies of the record of any proceedings as the result of which the name of the advocate and solicitor was removed from, or struck off, the Roll and a statement of any facts which have occurred since the name of the advocate and solicitor was removed from, or struck off, the Roll and which in the opinion of the Bar Council or any member of it are relevant to be considered or to be investigated in connection with the application.

His application was opposed by the Bar Council; it was dismissed by the High Court on 28 September 2006 so he appealed to the Federal Court (quorum of Alauddin Mohd Sheriff PCA, Zulkefli Ahmad Makinudin and James Foong Cheng Yuen FFCJ).

Though reference was made to the Supreme Court decision of Teoh Hooi Leong v Bar Council, Malaysia [1991] 2 MLJ 190, some important facets of that decision appeared to have escaped the present Federal Court such as the following:

  • as a matter of public policy a heavy burden is imposed on an applicant to satisfy the Court that he is a fit and proper person to have his name restored to the Roll. This high standard required was observed and applied in Chan Chow Wang v Malaysian Bar [1986] 2 MLJ 159.
  • the whole circumstances of the case must be considered before deciding what is fair and reasonable on the particular facts of the case.
  • A person who has been struck off the Roles is in a more disadvantageous position than an ordinary applicant seeking for admission into the Roll because in seeking for restoration to the Roll he must satisfy the Court not only that (i) he is a fit and proper person to be restored but (ii) must displace the possible permanent unfitness which was the basis of his removal.
  • In the final analysis the question is whether on the material available before the Court it is fair and reasonable to find that the appellant is a proper person to have his name restored to the Roll and it is not against the public interest to so order.

Clearly, the case must be decided on its own special facts and there lies a heavy burden on Thavananthan to demonstrate he is a fit and proper person and that he is no longer oriented towards the moral compass direction he did then that wrought his conviction.

The Bar Council’s attitude towards the application is surprising because they merely rely on the same conviction to oppose his application. It appears they placed little weight on the fact that Thavananthan by then had completed his sentence and was struck off the Rolls because of that conviction. There is no reference to any report prepared by the Bar Council to demonstrate that he is not fit and proper to be restored to the Rolls. If there were no unfavourable reports of Thavananthan after he was struck off and during his stint at Messrs. Ananthan and Partners, then the Bar Council should not object as they did in Teoh Hooi Leong.

There are two instances in the Federal Court decision that merits comment.

As the Federal Court rightly pointed out the “main issue for consideration in this appeal is whether it is fair and reasonable to restore the appellant to the Roll.” However it makes no reference to the heavy onus on Thavananthan though it does mention the principle that “each case must be considered on its own special factual circumstances.”

However, what comes next is curious and represents an unwarranted extension of Teoh Hooi Leong because after that the court states that it now thinks “that the sentences meted out on other similar comparable cases to the appellant’s case should be taken into consideration in determining whether it is fair and reasonable to restore the appellant to the Roll.” This is the first instance. Teoh Hooi Leong only provides:

… the duty of the Court is to look at the circumstances and all the materials available to satisfy itself that an applicant has repented and reformed and there is a strong likelihood that he is not going to repeat the misconduct.

There is no mention whatsoever of the duty to refer to other comparable cases in deciding what is fair and reasonable. This is correct because the crux of the application is whether Thavananthan has repented and reformed and there is a strong likelihood that he is not going to repeat the misconduct.

The court in deciding whether it is fair and reasonable to restore Thavananthan’s can only do so based on his own particular circumstances, character and facts. What is fair and reasonble in Wong Kim Fatt’s case (reference was made in the judgment of PP v Wong Kim Fatt [1991] 3 CLJ 2188, or even in Gooi Soon Seng or Phang Ah Hee’s case (both unreported) would be different from what is fair and reasonable in Thavananthan’s case. Those facts that persuaded the court that Wong Kim Fatt had repented and reformed and that he is not going to repeat the misconduct would be different from that of Thavananthan.

It is submitted that to decide the case in that manner is improper and inconsistent with the earlier Supreme Court decision of Teoh Hooi Leong.

The second instance is against paragraph 15 of the judgment which states:

Learned counsel for the respondent in his submission before us contended that the appellant had provided nothing convincing to indicate in writing or in the affidavit in support of his application that he is penitent or repentant or that he will in fact maintain the integrity and expected standards of the legal profession. To the respondent the appellant has not shown as yet that he is a fit and proper person. With respect on this point, I do not think that the appellant needs to go that far to categorically express in writing or in his affidavit that he is repentant and will maintain the integrity and the standards expected of him as a legal practitioner. The fact that the appellant had filed his application to be restored to the roll which was supported by the various letters of recommendation and testimonial by senior members of the Bar and the Judiciary are more than sufficient to show the appellant is now a fit and proper person.

In stating this it appears to have escaped that the Federal Court that the onus Thavananthan has is a heavy one. So the least he could do is to affirm in his affidavit or statutory declaration that he is repentant, etc. This is important because if he does not live up to it, an additional charge against him could be for giving false evidence and can be charged under section 199 and 200 and punishable under section 193 of the Penal Code. The letters of recommendation and testimonial is merely supportive of his actual repetance and appropriate character. The primary evidence must come from Thavananthan himself. All those letters were not sworn nor were they ever put to challenge. So it is disappointing that the Federal Court decided that no affirmation is required on the applicant’s part.

Going by this decision it is enough to stuff an application with letters of recommendations only without any personal commitment or affirmation on the part of the applicant under section 107 of the LPA76. What has happened is that the Federal Court has effectively reduced the ‘heavy burden’ to a feathered burden for re-admission and so it has effectively impugned its decision in Teoh Hooi Leong.

The sad part about this is that Teoh Hooi Leong is cited and relied on as good law even as it was being insidiously overruled. But then this case is really not so much about re-admission to the Rolls as it is about how the Judiciary despite its complaints of the declining standards of the Bar, plays an influential role in its decline. It does really make one wonder though how much the Bar and Bench contribute to each other’s own mutual decline in standards.

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it...

6 replies on “How to be a lawyer after your conviction”

  1. Is this Thavananthan Balasubramaniam a graduate of University of Buckingham in the UK?

  2. Dear Fahri,

    i just saw your comments.

    well, i still think it doesnt really add anything extra – if he still commits a crime later on, he would be punished for that, and there is another layer of 'unfitness' he had to overcome. but guess we'll agree to disagree.

    but doesnt my point no.3 trouble anyone??

    among all the professions, it really made me laugh whenever lawyers proclaim themselves to be 'good' judges of characters (let alone 'best' judge), given all the CBT, swindling cases against lawyers… how ironic.

  3. Hi Johnson,

    I think if it was an offence of qualitative similarity (an issue of trst) then there should be a similar repercussion but not if its for something else i.e. traffic offence, negligence (of another kind), etc. I hope I have addressed your question. Thanks for stopping by!

  4. Dear Fahri, in relation to your response to Loyar Bangkok – would there then be a similar repercussion should he commit a different offence altogether?

  5. Dear Loyar Bangkok,

    Thanks for your comments, they are appreciated. I agree with your second two points and wish to just reply to your first point.

    I accept the criticism against it but law is as much form as substance. In a summary judgment application under Order 14, there is a requirement that the deponent affirm that to his belief the sum is still due and owing and the failure to include that would render the whole application dismissed because it would be lacking. Of course it is a line, a standard line at that, but it does not detract that a legal affirmation has been made and hopefully it would make an impression upon the ethical or moral impulse of the person making that affirmation.

    As for proving a person's 'repentance' I in truth thought it a simple thing. If someone repents that means they acknowledge what they did was wrong and would therefore avoid it in future. The fact that they affirm a statutory declaration that they are repentant of their previous conduct means that they should be prosecuted if they conduct a similar offence in the future and also be taken to task for his statutory declaration because he has committed the same offence because it would show that his previous declaration of repentance is untrue.

  6. i generally agree but a few points, Fahri,

    1. i dont think it's realistic to expect that Thavananthan will be convicted "for giving false evidence" if he were "to affirm in his affidavit or statutory declaration that he is repentant, etc." n then "if he does not live up to it."

    (assuming the public prosecutor bothers to take action in the first place,) as a matter of legal principle, it would be practically impossible to prove that he actually had not been "repentant, etc." if u must, maybe an undertaking to the court would be stronger but even then, in any event it still does not serve any useful purpose or effectiveness, because these statements r more in the nature of 'puffery' (aka 'hot air') which doesnt really mean a shit.

    not to mention that ANYONE in the future would be able to satisfy that formality by adding 1 line to the affidavit.

    so, i respectfully think that to go along this line is unsatisfactory n it'll ultimatey lead us nowhere.

    2. i agree with the supreme court's test in Teoh Hooi Leong, which basically emphasised the public policy element, the fit and proper person test, to place a heavier burden on the applicant than an ordinary applicant seeking for admission into the Roll (must displace the possible permanent unfitness) AND that it is not against the public interest to so order.

    i think this federal court panel should have also asked: whether by restoring the applicant, it would adversely affect the public image of the bar n the public confidence in the legal system. i think they should have a "reasonable ordinary kopitiam customer" test:

    whether an ordinary member of the public sitting in a kopitiam talking cock while enjoying teh tarik would say, "jeez, even a criminal/law-breaker like ______ can still practice law…" or would they say, "oh come on, give him a break, it was not a serious offence n he had already ______"

    3. i'm actually more troubled by this statement: that "the various letters of recommendation and testimonial by senior members of the Bar and the Judiciary are ****more than sufficient**** to show the appellant is now a fit and proper person"!!

    speaking of each contributing to the other's decline… hehehehe… if SENIOR members of the Bar n Judiciary (wonder if he managed to get a letter each from vk lingam n tun fairuz?) says he's an angel, THEN IT IS MORE THAN SUFFICIENT to prove that he IS an angel… what a reasoning…

    4. DISCLAIMER: i have no comment on whether Thavananthani should be restored cos i DONT know him personally. so NONE of the above is to reflect on his suitability to be restored as a member of the Bar, 1 way or the other. the above is just to evaluate the reasoning by the federal court in deciding his application.

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