IN THE HIGH COURT OF FIJI AT SUVA
MISCELLANEOUS JURISDICTION

Miscellaneous action No. HBM 109 of 2020

IN THE MATTER of the Legal Practitioners Act 2009;

AND IN THE MATTER of Legal Practitioners (Admission) Rules 2014;

AND IN THE MATTER of an application for Re-admission as a Barrister and Solicitor by HAROON ALI SHAH, Petitioner.

BEFORE:
The Hon. Chief Justice Kamal Kumar

Counsel:
Mr. R. Singh for the Applicant
Ms V. Prasad for the Respondent

Hearing:
14th August 2020

Judgment:
14th January 2022

JUDGMENT

INTRODUCTION

1.	On 4 August 2020, the Petitioner filed Petition for re-admission as Legal Practitioner together with his Affidavit in Support sworn on 3 August 2020 (“Petitioner’s Affidavit”).

2.	On 5 August 2020, Chief Registrar filed Statement with the grounds of his objection together with Affidavit of Tui Kilakila (“Kilakila’s Affidavit”), Affidavit of Lalini Ranjana Devi Sharma (“Lalini’s Affidavit”), Affidavit of Sanjay Prakash Singh (“Singh’s Affidavit”) and Affidavit of Ravneel Chand (“Chand’s Affidavit”).

3.	On 6 August 2020, Mitchell Reddy filed her objection.

4.	Petition was heard on 14 August 2020, and adjourned for Ruling on Notice.

Background Facts

5.	On 3 December 1982, the Petitioner was admitted as a Legal Practitioner.

6.	On or about 18 November 2011, the Petitioner was charged with nine counts of professional misconduct and unprofessional conduct.

7.	The allegation in respect to each count were as follows:-

	COUNT 1
	Haroon Ali Shah, a legal practitioner and trustee of the bank account held with the Colonial National Bank, between the 31st day of May 2001 and the 20th day of November 2003, failed to ensure that the trust monies received on behalf of one Sashi Lata were not utilized for unauthorized purposes, which conduct constitutes Professional Misconduct pursuant to section 82(1)(a) of the Legal Practitioners Decree 2009.

	COUNT 2
	Haroon Ali Shah, a legal practitioner and trustee of the bank account ‘Mr. Haroon Ali Shah’ between the 19th day of October 2001 and the 16th day of February 2004, through the trustee’s Reports for the periods, 1st October 2000 to the 30th September 2001, 1st October 2001 to the 30th September 2002 and 1st October 2002 to the 30th September 2003, made misrepresentations to the Minister for Justice and the Fiji Law Society, which conduct constitutes Professional Misconduct pursuant to section 82(1)(a) of the Legal Practitioners Decree 2009.

	COUNT 3
	Haroon Ali Shah, a legal practitioner, between the 31st day of May 2001 and the 20th day of November 2003, having been instructed by one Bal ram on behalf of the said Bal Ram’s daughter Sashi Lata, failed to keep the said Bal Ram reasonably informed of matters relating to the instructions given, which conduct constitutes Professional Misconduct pursuant to section 82(1) (a) of the Legal Practitioners Decree 2009.

	COUNT 4
	Haroon Ali Shah, a legal practitioner and trustee of the bank account on the 21st of November 2003, failed to obtain written authorization from either Bal Ram or Sashi Lata for the deduction of the sum of $20,000 (twenty thousand dollars) as professional costs, which the said Haroon Ali Shah was required to do pursuant to section 6(1)(c) of the Trust Account Act 1996, which conduct constitutes Professional Misconduct pursuant to section 83(1)(h) of the Legal Practitioners Decree.

	COUNT 5
	Haroon Ali Shah, a legal practitioner and trustee of the bank account ‘Mr. Haroon Ali Shah’, on the 28th day of February 2006 and the 16th day of June, 2006, failed to keep all accounting records relating to trust monies at the said Haroon Ali Shah’s place of business which he was required to do, pursuant to section 14 (12) of the Trust Account Act 1996, which conduct constituted Professional Misconduct pursuant to section 83(1)(h) of the Legal Practitioners Decree 2009.

	COUNT 6
	Haroon Ali Shah, a legal practitioner and trustee of the bank account ‘Mr. Haroon Ali Shah’, on the 18th day of May 2001 and the 20th day of August 2001, failed to ensure that all payments made from the said account were made through trust account cheques that were crossed and marked on its fact “not negotiable”, which he was required to do, pursuant to section 7(1) and (2) of the Trust Account Act 1996, which conduct constituted Professional Misconduct pursuant to section 83(1)(h) of the Legal Practitioners Decree 2009.

	COUNT 7
	Haroon Ali Shah, a legal practitioner and trustee of the bank account ‘Mr. Haroon Ali Shah’, on the 30th day of April 2003 failed to ensure that the said trust account was not overdrawn, which conduct constitute Professional Misconduct pursuant to section 82(1)(a) of the Legal Practitioners Decree 2009.

	COUNT 8
	Haroon Ali Shah, a legal practitioner and trustee of the bank account, ‘Mr. Haroon Ali Shah’ between the 28th day of February 2006 and the 16th day of June 2006, failed to keep displayed accounting records which disclosed at all times the true position regarding all trust money held and the application of those moneys, which the said Haroon Ali Shah was required to do pursuant to section 4(1)(b) of Trust Accounts Act 1996, which conduct constitutes Professional Misconduct pursuant to section 83(1)(h) of the Legal Practitioners Decree 2009.

	COUNT 9
	Haroon Ali Shah, a legal practitioner and trustee of the account, ‘Mr. Haroon Ali Shah’ between the 1st day of January 2001 to 20th day of January 2004, by failing to establish and keep in a bank in Fiji one trust account designated or evidenced as such which he was required to do pursuant to section 5(1) of the Trust Account 1996, which conduct constitutes Professional Misconduct pursuant to section 83(1)(h) of the Legal Practitioners Decree 2009.

8.	On 1 June he was found guilty of charges laid under Counts 1 to 9 by the Commissioner for Independent Legal Services Commission (ILSC).

9.	The Commissioner on 22 June 2012, passed sentence whereby he ordered that:-

“1.	The Chief Registrar strike the name of Haroon Ali Shah from the Roll of Legal Practitioners. 

2. 	The Respondent be permitted to continue in practice for the period of 28 days hereof for the limited purposes of winding up his practice, and in the course of that period the is not to make any court appearance or to accept new instructions (be they from existing or new clients). 

3. 	That the Respondent pay witness expenses amounting to $1,056.01 to this Commission (as itemised by the Chief Registrar’s office). 

4. 	The Respondent and his Counsel failed to appear on the first day of hearing of these proceedings on 25th of January 2012, citing seriously adverse weather preventing them to travel to Suva. Despite the weather, the then prosecutrix who lives in the same locality was able to attend. Moreover the Respondent and his counsel failed to attend before the Commission on   20th of April, 2012, he claiming to have suffered not one but two punctures on the tyre of his vehicle. There are at least four intercity bus companies daily plying the route between Lautoka to Suva at regular intervals. 

5. 	The Respondent to pay wasted costs of $7,500 to the Chief Registrar and wasted costs of $7,500 to this Commission, such costs to be paid by 31st of July, 2012.”

Preliminary Issue – Affidavit of Sanjay Prakash Singh

10.	Order 41 Rule 1(8) of High Court Rules 1988 provide as follows:-

	“Every Affidavit must be signed by the deponent and the jurat must be completed and signed by the person before whom it is sworn.”

11.	It is noted that, Sanjay Singh signed the Affidavit but it does not bear the signature of the Commissioner for Oaths before who he took the oath, if he did so.

12.	This Court will not take Singh’s Affidavit into consideration in any respect.

13.	Even though, the Petitioner’s Counsel raised various other issues regarding Singh’s Affidavit this Court will not deal with those issues.

Application for Admission

14.	Section 34(1) of the Legal Practitioners Act 2009 (LPA) provide as follows:-

“(1)	The Chief Justice shall have power to admit to practice as a practitioner any person duly qualified in accordance with the provisions of this Act.  The Chief Justice may, upon cause being shown, refuse to admit any person as a practitioner notwithstanding that he or she may have these qualifications.”

15.	Section 35 of LPA provide as follows:-

	“A person shall be qualified for admission as a practitioner if that person is a fit and proper person to be admitted to practice as a practitioner in Fiji, and -

(a)	has satisfactorily completed a course in the study of law approved by the Board and a programme or course of practical legal instruction and training approved by the Board; or

(b)	that person has obtained from the Board a certificate that his or her educational qualifications are sufficient to qualify him or her for admission as a practitioner; or

(c)	in addition to the requirements specified under paragraph (a) or (b), before making his or her application for admission as a practitioner in Fiji that person has resided in Fiji for a period of at least 3 months immediately prior to making his or her application for admission unless the Chief Justice for good reasons shall dispense with such residential requirements.”
							(emphasis added)

16.	Any person including the Registrar is entitled to show cause why the Petitioner should not be re-admitted – s.37 LPA.

17.	Before proceeding any further this Court will briefly deal with the objection filed by Mitchell Reddy.

18.	Under Rule 5(2) of Legal Practitioner’s Admission Rules 2014 (“LPAR”) any person other than the Chief Registrar must file statement setting out grounds of objection and Affidavit Verifying the facts in the Statement within fourteen days of notice of petition being published.

19.	The Chief Registrar must serve the Statement of Objection filed by any person on the Petitioner at his or her address – Rule 5(3).

20.	Any person who intended to object to the Petition, should have filed the Objection by 5 August 2020.

21.	Mitchell Reddy’s objection was filed on 6 August 2020.

22.	Mitchell Reddy’s objection was disallowed for failure to comply with mandatory provision of LPAR.

23.	No evidence was produced in Court to prove that Mitchell Reddy’s Objection was served on the Petitioner by the Chief Registrar – Rule 5(3).

24.	It is undisputed that:-

(i)	The Petitioner has necessary qualification to be admitted as a Legal Practitioner. s35(a) – LPA.

(ii)	The Petitioner is Fiji Resident and has resided in Fiji for a period of three (3) months prior to filing the Petition. s35(c) – LPA.

(iii)	The Petitioner has complied with the Rules of Admission.

25.	The only contention is whether the Petitioner is a fit and proper person to be re-admitted as a Legal Practitioner as provided for in s.35 of LPA.

26.	“Fit and proper person” is not defined in the LPA and it is well established that it requires value judgment to determine if a person is fit and proper to be admitted as a Legal Practitioner.

27.	This will obviously depend on facts and circumstances of each case.

28.	The burden is on the Applicant to prove that he is a fit and proper person to be re-admitted as a Legal Practitioner.

29.	The legal profession is considered a noble profession which requires lawyers to always act honestly, with integrity and dignity.  Lawyers are entrusted to solve problems faced by members of our communities in terms of their properties, home, finances, business dealings, legal and family matters with total confidence that they will conduct their affairs with utmost honesty, integrity and dignity. 

30.	Supreme Court of India in passing comment on the legal profession observed as follows:-

	“It is to be remembered by worthy lawyers that they are part of the judicial system; they are officers of the Court and are a class apart in the society … they are an intellectual class of the society.  What may be proper for others may still be improper for them, the expectations from them is to be exemplary to the entire society, then only the dignity of noble profession and judicial system can be protected.”

	Reepak Kansal v Secretary General Supreme Court of India [2020] Writ Petition (Civil 341 of 2020)

31.	His Honour Chief Justice de Jersey in Janus v Queensland Law Society INC [2001] Appeal No. 9202 of 2006 (15 May 2001) stated as follows:

	“One should in this inquiry focus on the applicant’s intrinsic character, and not be unduly distracted by his good fame, whether within the legal tradition or the wider community (cf Re Bell, supra, p5 per Williams J as he then was).  The burden of establishing that he should be readmitted falls, unsurprisingly, on the applicant, and the extent of that burden was described in Re Morrison (1961) QdR 343, 348-9 (as confirmed in Re Thomas [1984] 2 QdR 460, 466):

	“When a person applies for re-instatement, he is in a more disadvantageous position than an original applicant because he must displace the decision as to probable permanent unfitness which was the basis of his removal. (Ex parte Lenehan (1948) 77 C.L.R. 403 at 422)”

32.	This Court adopts the following statement from Edward Poulter Leary v New Law Disciplinary Tribunal [2007] CIV. 2006-404-7227 (21 August 2007:

	“An applicant for admission, or readmission, to the legal profession must persuade this court that he or she “is of good character and a fit and proper person to be admitted” (s 46(2)(a)(ii)) and, in the case of a restoration application, we accept the observation in L (at 473) that “the greater the fall from grace the more the ground to recover before reinstatement”.  The gist of the Court of Appeal’s observations in Re Lundon [1923] NZLR 236, 242-243, remains apposite:

	It is well settled by authority that a solicitor is not so dealt with by way of punishment.  He is removed from the rolls because he is deemed unfit to be further trusted with the powers, rights, and duties attached to the responsible position of a solicitor of the Supreme Court.  He is deprived of that position not by way of penal discipline in respect of offences committed by him, but for the purpose of protecting the public and the administration of justice from the danger involved in the continued authority of a solicitor who by his conduct has shown that he is not fit to be trusted with the possession of such an office.  On an application for readmission, therefore, the question whether the period of his deprivation of office has been long enough to constitute an adequate punishment for his offence is wholly irrelevant.  The true question is not whether he has been sufficiently punished, but whether his conduct since his removal has been such as to demonstrate to the satisfaction of the Court that he is now a fit and proper person to be admitted as a solicitor, and that he no longer possesses that disqualifying character which was formerly held to exist and to justify his removal from the rolls.”  (emphasis added)

33.	In exercise of the discretion to re-admit the Practitioner who was struck off the Roll of Legal Practitioners, the entire conduct of the particular Practitioner from the time the Practitioner became aware of the wrongdoing to the date of hearing of the Petition for re-admission should be considered.  Ex-Parte Leneman (1949) 77 CLR 403 (Starks J at Page 430, 431).

34.	The Chief Registrar relied on Kilakila’s Affidavit, Chand’s Affidavit and Lalini’s Affidavit:-

Tui Kilakila’s Affidavit

At paragraph 13, the deponent states as follows:-

	“Through further investigations by the Registrar’s Office and the LPU, it has been identified that the Petitioner continued to provide legal services and receive monies from clients after being struck off the Roll of Barristers and Solicitors.  As such, reference is made to the affidavits of the following persons to support this contention:

(a)	Affidavit of Lalini Ranjana Devi Sharma, Businesswoman;

(b)	Affidavit of Sanjay Prakash Singh, Investigator, Legal Practitioners Unit; and

(c)	Affidavit of Ravneel Chand, Legal Officer, Legal Practitioners Unit.”

Chand’s Affidavit

At paragraph 5 the deponent states as follows:

	“On 3 August 2020, I went with Mr. Sanjay Prakash Singh and one driver to meet one Ms. Lalini Ranjana Devi Sharma and one Ms. Suluia Lotita.  The purpose of me accompanying Mr. Sanjay Prakash Singh was to prepare and verify the contents of the Affidavit of the above mentioned two persons.  An affidavit of Ms. Lalini Ranjana Devi Sharma was prepare by me.  We were unable to locate Ms. Suluia Lotita”.

Lalini’s Affidavit

At paragraphs 9 to 17 the deponent states as follows:

“9.	Some of my friends had recommended that I engage the services of Fazilat Shah Legal in Lautoka.  My friends had informed me that Haroon Ali Shah would be in the office and would do the necessary work and that his sister Fazilat Shah would come from New Zealand to conduct the hearing.

10.	In about April, 2018 my husband, my in-laws and I, went to the office of Fazilat Shah Legal in Lautoka for our appointment at about 12 noon.

11.	I recall when we entered the office, there was an open waiting area to the right of the reception.  There was a long passage that separated the reception area situated on the right and two offices situated on the left.  We were told to go into the second office.

12. 	In the second office, I noticed that there were many law books and files in the room.  The gentleman seated behind the desk introduced himself as Haroon Ali Shah (hereinafter referred to as “Mr. Shah”).  He was dressed in t-shirts and shorts.

13. 	During the course of the meeting which took about 1 hour 30 minutes, there were two other staff members present in the meeting, namely Setaita Ravai (hereinafter referred to as “Ms. Ravai”), one of the lawyers in the firm, and Seema who I later came to know was Mr. Shah’s personal assistant and also responsible for the firm’s accounts.

14.	In the meeting, we were informed by Mr. Shah that due to some issues, he could not appear in court.  He did not explain what the nature of the issue was.  He informed me that he would fully brief Ms. Ravai who would then appear in court on the basis of the instruction he would give.

15.	I handed over my disclosures for the criminal matter to Mr. Shah and he looked through them.  At some point in the meeting he informed that I should not worry and he would look after the matter and that I would be acquitted.

16.	Mr. Shah informed me that for the criminal matter he would charge a total of $15,000.  He said that I would need to pay a deposit of $2,000 and that I had to make fortnightly instalments of $500 until the $15,000 was paid in full.

17.	For the conveying matter, I handed over to Mr. Shah a copy of the Agreement that Babu Singh & Associates had prepared.  Mr. Shah said that the legal fees for this matter would be $1,500.  He also informed me that he would prepare the Sale and Purchase Agreement and that he would have the property transferred to my husband and I.”

At paragraphs 26 to 32 she states as follows:

“26.	For the duration of the time that my criminal matter was with Fazilat Shah Legal, to my recollection no one ever appeared from Fazilat Shah Legal.  It was generally Ms. Repeka from Babu Singh & Associates who would appear on instructions from Fazilat Shah Legal.

27. 	I tried to keep myself updated on what Mr. Shah was doing to progress both my matters.  I would call once a week or at least once a fortnight for an update and on several occasions the calls went unanswered.  When I did get through to Priti the receptionist, she would inform that Seema was with Mr. Shah preparing for the case or that there was a staff meeting.  Very seldom did I receive a clear update on the status of both of my matters. 

28. 	Following the first meeting with Mr. Shah every two to three weeks thereafter, I would call into Fazilat Shah Legal to make payments of $500.  These payments were made to Seema who issued me with receipts.

29. 	During some of these fortnightly visits I met with Mr. Shah to request for an update.  On some occasions the meetings would be short, lasting around 5 minutes.  When I had something to discuss, it could take up to 30 minutes.

30. 	In one of those meetings he continued to reassure me that I should not worry and that he would take care of my matter.

31. 	I recall in one of those meetings, he told me that it would not be long before he was readmitted as a lawyer and that it would probably be during the next admission that he would be readmitted.  I recall he also told me on one occasion that I should not worry, because of the court clerks and the Magistrates were his friends. 

32. 	In another of our meetings, I had asked Mr. Shah what evidence the prosecution was required to prove to establish the charge.  I recall he said that I asked a lot of questions and that they knew what they were doing as they were his lawyers.”		(emphasis added)

At paragraphs 40 to 43 and 46 she states as follows:
	
“40.	Over the 7–8 months that I had engaged the services of Fazilat Shah Legal, I became familiar with the then layout of the office set up and also the different staff that were working there during that period.

41. 	There were two individual office spaces apart from the reception and an open staff area.  The first office was adjacent to the waiting area which was Ms. Ravai’s office and the second office was Mr. Shah’s office, which was the biggest office in the entire building.  Mr. Shah had a special parking area in the front of the office building.

42. 	Over the numerous visits I had made to the offices of Fazilat Shah Legal, about 10 – 18 visits, Seema, was the person who provided all the receipts for the payments that I had made.  It appeared that she was the person in charge of the office under the directions of Mr. Shah.  On the occasions that I had made payments on Saturdays, my husband and I often had to wait until Seema and Mr. Shah arrived to open the office.  I noticed that Seema would arrive in Mr. Shah’s vehicle with Mr. Shah.  

43. 	During the 7–8 months that I had engaged the services of Fazilat Shah Legal, not once in any of the numerous visits I had paid to the office was Ms. Fazilat Shah present.  I have never spoken to her, nor seen her and neither have any idea what she looks like.

………..

46. 	Although, I had been informed that Mr. Shah could not appear in Court, at the time I had engaged his services, I was not aware of the effect of his disbarment, namely that he was not allowed to provide legal services in any form or manner.  My understanding simply was that he was not allowed to appear in court.”

35.	It is noted that the Affidavits filed on behalf of the Chief Registrar was served on the Petitioner on 6 August 2020, which was eight (8) days prior to the hearing and the Petitioner chose not to file any Affidavit in Response.

36.	This Court has no hesitation in accepting the Affidavit evidence of Lalini Ranjana Devi Sharma as true and correct.

37.	It is apparent from Lalini Sharma’s Affidavit that the Petitioner continued to provide legal advise, prepare Legal documents and obtained fees under the name of Fazilat Shah Lawyers where he had an office and an assistant.

38.	In support of the Petitioner’s submissions, he relied on the following case authorities:-

(i)	Singh v Chief Registrar (2016) HBM 33 of 2016 (16 May 2016);

(ii)	Flewitt v New Zealand Law Society (2014) NZLDT 64 (31 October 2014);

(iii)	Kennedy v Legal Profession Board of NSW (2012) NSWSC 33 (10 February 2012);

39.	In Singh v Chief Registrar:-

(i)	The Practitioner’s name was struck off from the Roll of Legal Practitioners by the Independent Legal Services Commission (ILSC);

(ii)	On appeal the Court of Appeal set aside the striking off from the Roll for life and substituted it for a term of ten (10) years;

(iii)	Supreme Court reduced the term of striking off to a term of six (6) years;

(iv)	Upon expiry of the six (6) year term, the Practitioner applied for re-admission;

(v)	Court noted that the Practitioner expressed remorse in his Affidavit and acknowledged the seriousness of his conduct;

(vi)	Court after analysing the evidence of the Practitioner, the Objection and noting that the Practitioner served the sentence imposed on him, and him being remorseful, re-admitted the Practitioner as Legal Practitioner.

40.	In Flewitt:-

(i)	The Practitioner because of his addiction to drugs started acting dishonestly which resulted in him being struck off from the Roll of Barristers and Solicitors;

(ii)	Prior to being struck off, he started to rehabilitate and continued in that path including abstinence from drugs and alcohol;

(iii)	The Practitioner attended Alcohol Anonymous and Narcotics Anonymous with him being a leader in some of those groups;

(iv)	The Practitioner studied full time and gained post-graduate diploma in the Theory of Addictive.  He worked for Salvation Army and Lifeline with those organisation providing reference which included the Practitioner’s redemption and honesty;

(v)	Two experienced psychiatrists also provided evidence that the Practitioner was stable person and that the risk of relapse is to be highly unlikely;

(vi)	Tribunal after analysing all the evidence and conduct of the Practitioner after being charged and being struck off, re-admitted him to the Roll.

41.	In Kennedy:-

(i)	The Practitioner was appointed President of North and North West Law Society and was entrusted with control of monies in a credit union account;

(ii)	The Practitioner misappropriated a sum of $2000.00 from the Credit Union account for his own use and benefit;

(iii)	As soon as the Law Society discovered the misappropriation the Practitioner repaid the sum of $2000.00;

(iv)	A month after the Practitioner re-imbursed the sum of $2000.00, Law Society filed charges with the Tribunal and the Practitioner’s name was struck off from the Roll of Legal Practitioners;

(v)	Court noted that Practitioner was remorseful, was forthright in accepting that his conduct was unprofessional;

(vi)	After being struck off, the Practitioner worked as a clerk assisting legally aided clients in the areas of criminal law, care/protection law, and family law;

(vii)	Mr. Hegney, the Legal Practitioner for whom the Practitioner worked for as a clerk gave very favourable report on works performed by the Practitioner as a clerk;

(viii)	Court after analysing all the evidence put before it found the Practitioner to be a fit and proper person.

42.	In this instance the Petitioner:-

(i)	Acted dishonesty by misappropriating funds held in his Trust Account on behalf of Sashi Lata, made misrepresentation to Minister for Justice and Fiji Law Society, deducted his fees from Trust Account without authority from his client, and failed to comply with his obligations pursuant to Trust Account 1996;

(ii)	The Petitioner being very experienced Legal Practitioner at the time of engaging in such conduct should have known or deemed to have known the seriousness of his actions and the consequences that would follow from such misconduct;

(iii)	Failed to show any remorse for his wrong doing;

(iv)	Did not provide any evidence to show that he reconciled or make any attempt to reconcile with the complainant in any manner whatsoever;

(v)	Failed to accept his wrong doing and failed to acknowledge that his conduct amounted to professional misconduct and unprofessional conduct;

(vi)	Vigorously defended himself in ILSC even to the extent of filing appeal against ILSC decision which appeal was deemed abandoned due to non-compliance with the Order of President of Court of Appeal;

(vii)	Failed to provide any evidence to show that after being struck off he provided any community service as was in Kennedy’s case;

(viii)	Continued providing Legal advise through the law firm of Fazilat Shah Lawyers, when Fazilat Shah Lawyers’ application to employ the Petitioner as a Consultant was twice refused by the Chief Registrar.

43.	The character references provided by Pillai Naidu & Associates, Jitend Reddy Lawyers, Law Naivalu and Sigatoka Electric Pte Limited relates to work carried out by the Petitioner and his conduct prior to him being charged and struck off from the Roll.  As such those references do not carry any weight.

44.	Before concluding, it is befitting to produce particulars of conduct in respect to Count 1 in detail:

“Particulars

i.	Haroon ali Shah (hereinafter referred to as the Respondent) being the principal of Messrs H A shah (hereinafter referred as the firm) and trustee of the bank account of the firm was admitted to the  High Court of Fiji in 1982 and practices in both civil and criminal law.

ii.	Sometimes between the mid to the late 1980’s, the Respondent was engaged by Sashi Lata, for the purpose of making a third party insurance claim on behalf of Sashi Lata’s husband and children who had been involved in a vehicular accident.  The accident resulted in the death of Sashi Lata’s husband and injuries to her children.

iii.	In relation to Sashi Lata’s matter, the Respondent’s firm received the sum of $70,000 (seventy thousand dollars) from Tower Insurance on the 30th May 2001 (receipt no. 2559).  This was banked on 31st May 2001 in the firm’s account held with the Colonial National Bank.

iv.	On the 21st of November 2003, the sum of $50,000 (fifty thousand dollars) was paid out to Bal Ram on behalf of Sashi Lata through the trust account cheque of H A Shah No. 499.

v.	On the 7th January 2004, the Fiji Law Society received a complaint by Bal Ram in relation to the settlement amount that he was paid by the Respondent on Sashi Lata’s behalf.

vi.	In the course of inquiring into the complaint, the Fiji Law Society considered the firm’s trust account audit reports for years ended 30th September 2001, 2002 and 2003 which were prepared by BDO Zarin Ali, Chartered Accountants.  The actual trust account balances for 2001, 2002 and 2003 were recorded as follows:

•	30th September, 2001	-	$55,462.00
•	30th September, 2002	-	$15,184.34
•	30th September, 2003	-	$10,447.06

vii.	By a letter dated the 15th of February 2006, the Fiji Law Society appointed G. Lal & Co. as inspectors pursuant to Section 16 of the Trust Account Act 1996 (as amended) to carry out an in-depth audit of the ledger transactions in the name of Sashi Lata and a high level audit of the trust accounts for the financial periods covering the dates the 30th May 2001 to the 21st of November 2003.

viii.	On or about the 28th day of February 2006, G. Lal & Co. made a special visit to the offices of Messrs H A Shah to commence the audit inspection of the firm’s trust account.  The Respondent was requested to provide several documents including, the trust account ledger, bank statements, receipt books, payment vouchers and cash books.  This request was repeated over several days but was not fully complied with.

ix.	After the completion of the audit process, G. Lal & Co. submitted to Fiji Law Society a report dated the 16th of June 2006 outlining their findings.

x.	In their report, G. Lal & Co. noted that the sum of $70,000.00 (seventy thousand dollars) was deposited into the firm's trust account on the 31st May 2001 on behalf of Sashi Lata.

xi.	G. Lal & Co. further concluded that on the 21st of November 2003 the sum of $50,000 was paid to Bal Ram through Cheque No. 499 which cheque was presented in the trust bank on the 24th November 2003.

xii.	G. Lal & Co. from their review of the audited trust accounts for the years ended 30th September 2001, 2002 and 2003, noted that the trust account balance under Sashi Lata’s trust account was not disclosed under the audited accounts.

xiii.	G. Lal & Co. having considered that the trust bank account balance for the period 31st of May 2001 to the 21st November 2003 should have had a balance of at least $70,000, together with the non-disclosure of the trust account balance of Sashi Lata in the audited reports, covering that period, concluded that all the trust money of Sashi Lata amounting to $70,000 was utilized for other purposes.  They further concluded that this indicated that the trust ledger accounts were overdrawn by at least $70,000 as at the 30th of September 2001 and during the years ended the 30th of September 2002 and the 30th of September 2003.

xiv.	Between the 31st May 2001 and the 20th of November 2003, the Respondent, being the trustee of the trust bank account ‘Mr Haroon Ali Shah’, having received the sum of $70,000 on behalf of Sashi Lata, utilized the said sum for unauthorized purposes which conduct involved a substantial failure to reach and maintain a reasonable standard of competence and diligence.”

45.	It is obvious that the Petitioner misappropriated funds held on behalf of Sashi Lata and in simple terms means he stole Sashi Lata’s money.

46.	Producing particulars of Count 1 does not in any way mean that conduct subject to other Counts are less serious.  They are equally serious as Count 1.

47.	Members of the community who entrusts the Legal Practitioner, do so on the understanding that the Legal Practitioner is an honourable person who would act honestly for his/her client’s benefit and interest.

48.	Legal Practitioners who receive money in their Trust Account on behalf of their client are required to pay out the money for the purpose it was received and not otherwise unless and until the person on whom behalf moneys are held instruct the Legal Practitioner to do so.  Provision of Trust Account Act 1996 makes this obligation very clear.

49.	An act of dishonesty as in the present case brings the nobility of the profession and the justice system into question.

50.	In this instant, the misconduct on the part of the Petitioner which he failed to acknowledge or for which he failed to show remorse has certainly affected the confidence of the public and brought disrepute to the nobility of the profession and the integrity/dignity of our justice system.

51.	After analysing the evidence, this Court has no hesitation in holding that the Petitioner has failed to satisfy this Court that he is a fit and proper person to be re-admitted as a Legal Practitioner.

Orders

52.	Petitioner’s Petition for Admission as a Legal Practitioner filed on 4 August 2020, is struck out.

Kamal Kumar
Chief Justice

At Suva
14 January 2022

Solicitors
Fazilat Shah Lawyers for Petitioner
Legal Practitioners Unit for Respondent