Lawyer not liable for subordinate’s mistake, rules appellate court

The Court of Appeal says the Bar Council’s disciplinary committee breached a fundamental principle of natural justice by refusing to allow Lim Kien Huat to call his client as a key witness.

The Court of Appeal quashed lawyer Lim Kien Huat’s six-month suspension and RM50,000 fine for professional misconduct.

PUTRAJAYA:

 A lawyer had his six-month suspension and RM50,000 fine quashed after the Court of Appeal allowed his appeal against two counts of alleged professional misconduct, stating that he could not be faulted for the mistake of his subordinate.

A three-member panel, led by Justice Che Ruzima Ghazali, who is now a Federal Court judge, found that both the disciplinary committee and the High Court erred in law by finding Lim Kien Huat guilty of misconduct under the Legal Profession Act 1976.

They ruled that the Act requires proof of personal culpability, similar to the criminal standard of mens rea, a Latin term meaning intent to do wrong.

Justice Azhahari Kamal Ramli and Justice Evrol Mariette Peters also heard Lim’s appeal.

“It was not enough to impose vicarious civil liability for the act of a subordinate, such as the legal assistant’s error in sending an incomplete court order,” said Peters, who wrote the grounds to allow Lim’s appeal.

The court also ordered the complainant – the Bar Council – to pay Lim RM20,000 in costs.

In the 15-page ruling, Peters said the disciplinary committee breached a fundamental principle of natural justice by refusing to allow Lim to call a client as a material witness.

“This client was central to the defence, as his instructions were the basis for the appellants’ actions.

“Denying this opportunity fatally compromised the fairness of the hearing and prejudiced the appellant’s right to a full defence,” she said.

She said that while the High Court cited the correct “beyond a reasonable doubt” standard, it failed to apply it rigorously.

She also said Lim’s forceful advocacy, which could be viewed as acting “fearlessly” for his client under the professional rules, raised a reasonable doubt about his intent to mislead the court.

“The failure to consider the impact of the excluded witness also meant the findings could not be sustained to that high standard,” she said.

Lim was a partner at Messrs Lee & Lim and represented a client in a shareholder dispute against a private company, Ho Shen Lee Sdn Bhd, and its two shareholders, who were husband and wife.

In April 2019, the High Court ordered the company, now under liquidation, to be wound up, but also granted a crucial interim stay of that order.

A central factual dispute arose when Lim’s legal assistant emailed the formal winding-up order to the liquidator on April 23, 2019, without referencing the interim stay, which had not yet been formally issued.

This omission formed the first complaint against Lim.

In July 2019, as the litigation continued, Lim’s firm sent letters to the court accusing both directors of dissipating the company’s assets.

Challenged by lawyers for the directors, Lim reaffirmed the serious allegations in a follow-up letter and refused to withdraw them, which led to the second complaint, alleging that he had acted improperly and attempted to mislead the court.

The disciplinary committee and, later, the Advocates and Solicitors’ Disciplinary Board found him guilty of professional misconduct for both incidents.

In 2022, the board imposed the suspension and the fine, which was affirmed by the High Court in 2024. - FMT