Siti Juliana Suen Bte Abdullah v Sungei Wang Properties Sdn Bhd, 22-06-2010

• Judge: DATO’ HAJI MOHD ZAWAWI BIN SALLEH
• Judgment Date: 22 June 2010
• Court: High Court (Malaysia)
• Record Number: R2-17-4-07

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR

(BAHAGIAN RAYUAN DAN KUASA-KUASA KHAS)

USUL PEMULA NO. R2-17-4-07

Dalam Perkara mengenai TAI CHOI YU (No. K/P: K.641851 sekarang diganti oleh No. K/P: 470213-13-5301) dari Tetuan Tai Choi Yu & Co Peguamcara, No. 12, Tingkat Satu, Bangunan Kiat Siang, Jalan Bendahara, 98000 Miri Sarawak dan No. 568-9-8, Kompleks Mutiara, 3½ Miles, Jalan Ipoh, 51200 Kuala Lumpur untuk Lesen Ad Hoc atau kebenaran untuk amalan dalam Mahkamah Tinggi Malaya di Kuala Lumpur di dalam Mahkamah Tinggi Guaman No. D8-22-1520-2005 termasuk semua dan sebarang prosiding interlokutori dan perkara-perkara berhubung dengannya dan rayuan darinya

Dan

Dalam Perkara Mengenai Seksyen 18 Akta Profesion Undang-Undang 1976

TAI CHOI YU … PEMOHON

JUDGMENT

Mohd Zawawi Salleh, J:

Application

[1] This is an application by Tai Chou Yu (“the Applicant”) an advocate and solicitor of the Advocate Association of Sarawak pursuant to section 18(1) of the Legal Profession Act 1976 (“the Act”) for the ad hoc admission as an advocate and solicitor of the High Court of Malaya in order for him to appear as counsel for the Plaintiffs in the proceedings in the High Court of Malaya in Kuala Lumpur Civil Suit D8-22-1520-2005 (“the said suit”) between the following parties:

Plaintiffs: 1. Siti Juliana Suen Bte Abdullah

2. Mohd Zuki Bin Mohd Diah

3. Sibu Agricultural Co. Sdn Bhd

4. Ngu Tieng Ung

Defendants: 1. Sungei Wang Properties Sdn Bhd

2. Trafalgar Links (M) Sdn Bhd

3. Eng Poh Hong @ Wong Choon Ming

[2] The issues framed for the said suit before the High Court involving allegations of breach of contract, fraud, conspiracy and collusion.

[3] The said suit originates from Sibu High Court Suit No. 22-48-02 whereby it was dismissed by the High Court on the ground of jurisdiction on forum non convenience. On appeal to the Court of Appeal, it was dismissed on the 23.11.2004 with liberty to file afresh in the High Court of Malaya. Leave to appeal to the Federal Court was dismissed on the 15.11.2006. Subsequently, the said suit was filed again in the High Court of Malaya in Civil Suit No. D8-22-1520-05 in Commercial Division, Kuala Lumpur, on 19.10.2005, through a legal firm in Kuala Lumpur.

Grounds of Application

[4] Learned counsel for the Applicant submits that every party should have the right to choose his own counsel under the Federal Constitution. On the facts of the said suit, the Plaintiffs have already retained the Applicant as counsel to act for them. This choice is not only based on the professional relationship between the Plaintiffs’ of the case with the Applicant but also on close personal level. Learned counsel for the Applicant further submits that the Applicant does indeed have the requisite ‘special qualification or experience of a nature not available amongst advocates and solicitors in Peninsular Malaysia’. The Applicant has been in practice for more than 40 years and has vast experience in the matters relating to the said suit.

Grounds of Objection

[5] The Bar Council (“BC”) and the Kuala Lumpur Bar Committee (“KLBC”) took a united stand to oppose the application. Their main ground of objection was the Applicant does not appear to possess special qualification or experience that relates to the subject matter in the said suit as required under section 18 of the Act. Further, the Applicant has not adduced any evidence to show that there are no lawyers in Peninsular Malaysia with relevant qualification, expertise or knowledge to argue the issue before the Court in the said suit.

[6] The Attorney-General’s Chambers also opposes the application. Learned Senior Federal Counsel appearing for the Attorney General’s Chambers submits that the Applicant has failed to show –

1. That he possesses special qualification or experience in respect of the issues raised in the said appeal;

2. That he is a specialist in corporate litigation in Malaysia; and

3. That he placed in a much better position to conduct the appeal and assist the High Court in determining the issues raised for determination than the advocates and solicitors in Peninsular Malaysia.

[7] It is trite that the Malaysian Bar is subject to the Legal Profession Act 1976 (Act 166) and the rules made thereunder. The Sabah Law Association is governed by the Advocates and Solicitors Enactment of Sabah (Reprint 1966) (Cap 2) and the Advocates Association of Sarawak by the Advocates and Solicitors Ordinance of Sarawak (Reprint 1966) (Cap 110).

[8] The existence of three separate Bars, like the existence of two High Courts (one in Peninsular Malaysia and the other in East Malaysia), lies in negotiations between the Federation of Malaya and then Crown colonies of North Borneo (now Sabah) and Sarawak leading to the formation of Malaysia. They are really relics of Malaysian history.

[9] Members of the Malaysian Bar who are advocates and solicitors of the High Court in Malaya are entitled to practice only in Peninsular Malaysia, not in Sabah and Sarawak. Likewise, advocates and solicitors of the High Court in Sabah and Sarawak are not entitled to practice in Peninsular Malaysia. Furthermore, no member of the Bar in Sabah is entitled to practice in Sarawak, and vice versa.

[10] However, the exception that is normally applicable to an advocate and solicitor of Sabah and Sarawak and a foreign practitioner being instructed to appear for a particular case is the admission in a special cases.

Findings of the Court

[11] The ad hoc admission of the Applicant is governed by section 18(1) of the Act which provides as follows:

“Notwithstanding anything contained in this Act, the Court may for the purpose of any case and subject to the following subsections admit to practice as an advocate and solicitor any person who, if he was a citizen of, or a permanent resident in Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court and no person shall be admitted to practice as an advocate and solicitor under this subsection unless –

1. For the purpose of that particular case he has, in the opinion of the Court, special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia; and

2. He has been instructed by an advocate and solicitor in Malaysia”.

[12] The issue in this application is concerned the requirements contained in the two limbs of section 18(1) (a) of the Act and the onus is on the Applicant to show that he possesses special qualifications or experience of a nature not available amongst advocates and solicitors in Peninsular Malaysia.

[13] There is a plethora of authorities setting out this point. To mention a few are as follows:

1. Re Graham Starforth Hill [1971] 2 MLJ 269

“In my view, for the application to succeed, the onus is on the applicant to satisfy the court not only that for the purpose of that particular case the applicant has special qualifications or experience but also that such special qualifications or experience must be of a nature not available amongst advocates and solicitors in Malaysia”.

(b) Re Andrew Hilary Caldecott QC [1998] 6 MLJ 718

“… the burden is on the Applicant to show to the satisfaction of the court that he has such special qualification or experience of a nature not available amongst advocates and solicitors in Malaysia”.

[14] The Applicant alleges to have the experience and special qualifications in the areas of administrative and constitutional law, public law, law of revenue, law of contract and law of securities including trade practices. (See Applicant’s Affidavit In Support of the Application (Enclosure (11)).

[15] The above-mentioned assertions does not refer to any special qualifications or experience in the areas...