A consideration of Thavananthan a/l Balasubramaniam v Majlis Peguam Negara  3 MLJ 316 with Teoh Hooi Leong v Bar Council, Malaysia  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.
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  2 MLJ 190, some important facets of that decision appeared to have escaped the present Federal Court such as the following:
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  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.
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