EPS0317/QB01/SRMK(1)

Bar Council Malaysia

Ethics and Professional Standards Course: Written Assessment
Instructions and terms for the Written Assessment
(1) Please note that this assessment is a mandatory part of the Ethics and Professional Standards
Course.
(2) Please prepare answers to the following five questions, and submit this document back to
[email protected] when you have completed your answers.
(3) Please write your answer in the space provided, and ensure that each answer does not exceed
300 words.
(4) Please note that your answer should not comprise of any plagiarised material / content from
any source, and while you may refer to statutory provisions and cases and materials for the
purposes of writing the answers, if you are found to have plagiarised any material / content,
you will be deemed to have failed the Ethics and Professional Standards course, and may not
be allowed to re-do the course.
(5) Please note that your answer should not be copied from any source (including the work of
other pupils in chambers), and if you are found to have done so, you will be deemed to have
failed the Ethics and Professional Standards course, and may not be allowed to re-do the
course.
(6) Please note that your answers should be written only by you, and not by any third party,
whether for payment or otherwise. If it is discovered that your answers have been written by
a third party, you will be deemed to have failed the Ethics and Professional Standards course,
and may not be allowed to re-do the course.
Please insert your full name and Bar Council Petition Number below. This will be treated as an
acknowledgement that you have read and understood the terms of this assessment.

Name: HAW HAN HANG

Petition No: WA-18-1777-10/2023
Date: 12/05/2024

Module 1: Role of the Bar: Question 1

Explain in your own words, the role that an Advocate & Solicitor has in the resolution of a dispute
or to ascertain the guilt or innocence of an accused person.
An Advocate & Solicitor plays a crucial role in resolving disputes and establishing the innocence or
guilt of an accused individual. In dispute resolution, they serve as legal representatives, offering
counsel, drafting legal documents, and advocating for their clients in various legal proceedings. Their
foremost duty is to safeguard their client's rights and interests while promoting justice.
When assessing the guilt or innocence of an accused party, the Advocate & Solicitor defends the
accused in criminal cases. It's imperative that they present all permissible defenses in a fair and
honorable manner, irrespective of personal beliefs about the accused's guilt. This underscores the
importance of providing a robust defense and ensuring a fair trial.
In essence, the Advocate & Solicitor's role in dispute resolution and determining guilt or innocence
revolves around upholding principles of justice, fairness, and professionalism. They must prioritize
their clients' interests while adhering to ethical guidelines and legal obligations to maintain the

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integrity of the legal process and respect for the law.

Module 2: Professional Ethics: Question 2

You have been appointed to act for the Defendant in a debt collection case. Your instructions are to
delay the proceeding for as long as you possibly can. You proceeded to file the memorandum of
appearance and the Statement of Defence. Your client is unable to give you any information that
provides him with a defence. Not having a real defence, it was not possible for you to be ready when
the hearing date arrives. You decide to obtain a postponement by claiming to be unwell.
Discuss in what way, if any, you have behaved improperly.
According to the facts provided, I have breached Rule 6(a) of the Legal Profession (Practice and
Etiquette) Rules 1978 (LP(P&E)R 1978). This rule stipulates that an advocate and solicitor should not
accept a brief unless they are reasonably certain of being able to appear and represent the client on
the required day. The significance of this rule is highlighted in the case of Dato Sri Mohd Najib bin Hj
Abdul Razak v PP [2022], where the Federal Court emphasized that counsel, upon accepting a brief,
should indeed be deemed as ‘reasonably certain of being able to appear and represent the client on
the required day’ as per Rule 6(a) LP(P&E)R 1978. Furthermore, Rule 24 LP(P&E)R 1978 mandates
that an advocate and solicitor must make every effort to be ready for trial on the day fixed. This rule
allows for the application of postponement only for good and cogent reasons, and such applications
should not be made in the absence of counsel for the other party without at least 48 hours notice.
The case of Syarikat Siaw Teck Hwa Realty & Development Sdn Bhd v Malek & Joseph Au [1999]
underscores the seriousness of non-compliance with these rules, where the failure to attend a
hearing resulted in the appeal being struck out. This failure was deemed a blatant violation of Rule 6,
15, and 24 LP(P&E)R 1978, reflecting a total disrespect to the Federal Court and falling short of the
standards expected of a prudent and reasonable lawyer. Additionally, I acknowledge breaching Rule
12 LP(P&E)R 1978, which prohibits advocates and solicitors from conducting civil cases or defenses
intended merely to delay proceedings, harass or injure the opposing party, or perpetrate oppression
or wrong.

Module 3: Duty to and in Court: Question 3

Explain the different types of contempt and how each situation may arise. Consider the procedural
safeguards that exist before one may be punished for contempt?
Contempt of court manifests in various forms, typically categorized as "contempt in the face of the
court" and "scandalizing the court or judiciary."
"Contempt in the face of the court" occurs within the precincts of the court and pertains to
circumstances known personally to the court. This includes actions or conduct during court
proceedings or when a case is pending and not yet concluded.
Conversely, "scandalizing the court" transpires outside the courtroom, often through public comments
or publications that undermine the court's authority or bring it into disrepute. A notable case
exemplifying this is Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd [2021].
The criteria for determining contempt were delineated in R v Gray [1900], where any act or
publication aimed at denigrating a court or its judges is considered contempt, albeit with a crucial
caveat. Courts and judges are amenable to criticism, provided it is reasoned and not intended to
impugn their authority or integrity.
Procedural safeguards must be adhered to if the court opts for summary punishment of an advocate
and solicitor for contempt. Firstly, the nature of the alleged contempt must be specified, and the

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contemnor should be apprised of the offending statement. This principle was underscored in PP v
Seeralan [1985].
Moreover, the contemnor must be afforded a reasonable opportunity to present their defense. Failure
to provide this opportunity violates principles of natural justice, as elucidated in Zainur Zakaria v PP
[2001]. This encompasses the right to appoint counsel and adequate time to prepare one's case,
ensuring fairness in contempt proceedings.
In essence, while contempt of court warrants robust enforcement, procedural fairness remains
paramount to safeguarding individual rights and upholding the integrity of the judicial process.

Module 4: Solicitors Accounts and Undertakings: Question 4

You act for a client on several matters including the sale of some shares to a purchaser.
The proceeds of the sale are held in your Client Account on an undertaking to release it to your client
once the sale is complete, but to return the money to the purchaser if the sale is aborted. The sum
deposited with you amounts to several million Ringgit.
In the meantime, your client has accumulated unpaid legal fees and disbursements of RM75,000
which is due to you. Your client tells you that the purchaser owes him RM100,000 from another
transaction, and tells you to deduct the fees he owes you from the money held in your Client
Account.
He reasons that the money will eventually be paid either to him or to the purchaser. If it is to be paid
to him, he will then have to pay the sum of RM75,000 to you. However, if it is to be paid to the
purchaser, he will then receive RM100,000 from the purchaser from which he will still have to pay
you. He feels therefore, that no harm will be done either way. Anyway, since he is your client, you
should just follow his instructions.
Discuss.
Firstly, the proceeds from the share sale are held in my Client Account on an undertaking, indicating
that I am holding these funds in trust for my client until the completion of the sale. According to Rule
7 of the Solicitors' Account Rules 1990, withdrawals from client accounts are permitted only for
specific purposes directly related to the client's interests or trust obligations. These include
payments to or on behalf of the client, payments required for executing a particular trust, or
payments to settle debts due to me from the client. Secondly, my client has accumulated unpaid
legal fees and disbursements amounting to RM75,000. Rule 7 also allows for withdrawals from client
accounts to pay solicitor fees where a bill of costs has been delivered to the client, and the client has
been notified that funds held for them will be used for this purpose. However, any withdrawal must
strictly comply with the rules governing client funds. Despite the unpaid fees, my client instructs me
to deduct the outstanding amount from the funds held in the Client Account. However, this action
may contravene Rule 8(5) of SAR 1990, which prohibits the use of funds held for one client to settle
obligations to another client without explicit written consent from the client whose funds are being
utilized. Deducting fees from the proceeds held in trust for the share sale may breach this rule. The
case of Gnanasegaran a/l Pararajasigham v PP [1997] underscores the severity of misappropriating
client funds. Using funds held in trust for one client to settle obligations to another client without
proper authorization may constitute a criminal offense.

Module 5: Duty to Client: Question 5

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You are advising your client on a takeover of a company. You are aware that the takeover will create
a lot of media interest, and probably result in the shares of the target company becoming more
valuable. You decide to make an investment in the target company to take advantage of the
likelihood that its share price will go up, once news of the takeover gets out.
Is there anything wrong with what you have done? What consequences could follow?
Firstly, such conduct may contravene Rule 27(a) of the Legal Profession (Practice and Etiquette)
Rules 1978, which prohibits advocates and solicitors from appearing in matters in which they have a
direct pecuniary interest. By investing in the target company, I would have a financial stake in the
outcome of the takeover, potentially compromising my ability to provide impartial and objective
advice to my client.
Moreover, this action could also violate Rule 35(a) of the same rules, which mandates advocates and
solicitors to refrain from abusing or taking advantage of the confidence reposed in them by clients for
personal benefit or gain. By capitalizing on insider knowledge of the takeover and potentially
benefiting financially from it, I would be exploiting the trust and confidence my client has placed in
me for my own gain.
I will face the Contempt of Court for Abuse of Process of Discovery. According to the case of AG,
Malaysia v Manjeet Singh Dhillon [1991], the Supreme Court affirmed the application of the English
common law principle of contempt of court in Malaysia, as outlined in section 5 of the Civil Law Act
1956. The case of Home Office v Harman [1982] emphasizes the duty of a solicitor representing a
party in civil litigation. It underscores that when a solicitor obtains possession of documents
belonging to the opposing party through discovery, they must refrain from using this advantage for
any collateral or ulterior purpose that is not reasonably necessary for the proper conduct of the action
on behalf of their client.