[2021] 6 MLRA 266

Federal Court, Putrajaya
Rohana Yusuf PCA, Azahar Mohamed CJM, Harmindar Singh Dhaliwal FCJ
[Civil Appeal No: 02(f)-72-09-2019(W)]
13 August 2021


Harmindar Singh Dhaliwal FCJ:

[1] This appeal concerns an issue of some importance to the legal profession. The question for our consideration is simply this: under what circumstances can it be said that a person is practising law. Can someone who has given some legal advice informally be said to have practised law? Can an isolated act of giving advice constitute practising law or must it require a systematic, regular and continuous act? Or does it require something more in the form of a solicitor-client status requiring a relationship of trust and confidence?

[2] The appellant, Darshan Singh Khaira, was a practising lawyer for many years. However, by a decision of the Disciplinary Board (the "DB") of the Majlis Peguam Malaysia dated 14 April 2016, he was struck off the Roll of Advocates and Solicitors of the High Court of Malaya. The basis for the said order was that the appellant was practising law without a practising certificate as he was a bankrupt.

[3] The appellant then filed an Originating Summons in the High Court at Kuala Lumpur to set aside the said order of the DB of the Majlis Peguam Malaysia. The High Court dismissed his application. He then filed an appeal to the Court of Appeal. He failed again. He was, however, successful in obtaining leave of this court to file an appeal on a single question of law as follows:

"Whether the giving of advice to a client of a law firm amounts to practising as a lawyer"

The Background

[4] In order to appreciate how the appellant came to the predicament of being struck off the Roll, it is necessary to set out the relevant facts. It transpired that the appellant had assisted the complainant, Zulkefli bin Hashim, in a traffic case in the Magistrate's Court in Georgetown and later in proceedings before the High Court and Court of Appeal. Although the complainant had represented himself in these proceedings, he had engaged the appellant to prepare the legal documentation and had sought legal advice from him. When the Court of Appeal had struck out his appeal on a procedural ground in that prior leave to appeal had not been obtained, the complainant lodged a complaint with the Majlis Peguam Malaysia.

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