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I have thoroughly discussed this heading in my earlier judgment (see Raja Segaran a/l S Krishnan v Bar Council Malaysia & Ors [2000] 1 MLJ 1 at p 25). The unreported judgment of the Court of Appeal upheld my earlier views.

The conduct of the defendants and the members of the third defendant if allowed to attend the EGM and to discuss the resolutions would appear to constitute an offence under s 4(1)(a) read together with s 3(1)(c) of the Sedition Act 1948. However, it is not my duty to make any finding as to whether an offence has or has not been committed under the said sections. This is for the Public Prosecutor to decide, if at all. In any event, it is my judgment that the plaintiff in actual fact is protecting the defendants from plunging into an abyss from which they cannot emerge unscathed.

As regards the respondent's view that 'the holding of the said EGM and/or the adoption of the said resolution would also constitute an offence under ss 3(l)(c) and 4(1)(a) of the Sedition Act 1948, we are of the opinion that the wordings of both the sections are so simple and clear that no reasonable man could ever disagree with the respondent's view.

82   We have already noted hereinabove the points submitted by Mr Vijandran on the issue.

83   Raja Aziz in his submission on the issue questioned the standing of the respondent. Sedition being a crime it was his contention that only the Attorney-General who could assert public rights and who could represent public interest but not the respondent.

 84   Leaving aside the issue of locus standi which we will deal in greater detail later, it is our view that the short answer to the query of Raja Aziz is found in the final judgment of the learned judge when he said:

... so long as he can show that the conduct of the defendants is such as to put him, the plaintiff, in peril of such similar prosecution that the defendants could face if the defendants' act is allowed to be consummated, the plaintiff need not wait to see the outcome, before acting. To protect his own interest he can take out an injunction to restrain the defendants and if the court is satisfied that the act complained of could give rise to the plaintiff facing criminal prosecution, the plaintiff ought to be allowed to use injunctive measures to stop the defendants.

85   Further, we are in agreement with the view expressed by this court on the issue and reproduced hereinabove.

86   Thus, we find no merit in the grounds of appeal of the appellants and it is our judgment that the learned judge in respect of the first suit was correct in law when he allowed a 'Declaration that the said EGM and the said proposed resolution constitute offences under the Sedition Act 1948.' And to remove any doubt our conclusion equally applies to Appeal 521.

Locus standi

 87   On the issue of locus standi the argument marshalled for the appellants is that the respondent did not have substantive locus standi since it is the Attorney-General alone who can institute criminal proceedings. This point was brought up in relation to the contention by the respondent that to allow the proposed EGM and the proposed general meeting to proceed would be contemptuous and seditious and ultimately would expose him to possible criminal prosecution.

 88   It was also further asserted for the appellants that the respondent failed to show (threshold locus standi) that he would suffer special injury distinct from any possible injury that might be suffered by the rest of the members of the Malaysian Bar if the proposed EGM and proposed general meeting were to go ahead. Considerable reliance was placed upon the following cases: Gouriet v Union of Post Office Workers [1978] LR 435; Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors & Other Appeals [1997] 3 MLJ 23 CA and Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12.

89   Mr Vijandran replied that the principle in Gouriet was not relevant to the facts of the present suits. Alternatively, he submitted that even if applicable the exceptions therein apply.

90   In elaborating why Gouriet was not applicable Mr Vijandran listed the distinguishing factors, namely,:

(a)   that Gouriet was not a member of the Postal Union but just an ordinary member of the public;

(b)   that Gouriet did not allege special damage to him; and

(c)   that Gouriet's principle does not apply where an application for an injunction is by a member of a statutory body who seek to restrain ultra vires acts of the corporation notwithstanding the same acts may also be illegal and/or criminal.

91   Learned counsel went on to say that in the instant appeals the respondent is a member of a statutory body, that is, the Malaysian Bar and thus entitled to restrain such body from ultra vires acts even if those acts are also criminal offences. A series of decided cases were then cited to support such a proposition, inter alia: Simpson v Westminster Palace Hotel Co (1860) 8 HL Cas 712; Powell v Kempton Park Racecourse (1897) 2 QB 242; Hoole v Great Western Railway (1867) 3 Ch App 262; Jenkin v Phamaceutical Society of Great Britain (1921) 1 Ch D 392; Bermuda Cablevision Ltd. v Colica Trust Co Ltd (PC) [1998] AC 198; Bateman's Bay Local Aboriginal Land Council and Another v Aboriginal Community Benefit Fund Pty Ltd and Anor 155 ALR 684.

92   Upon reading the judgment of the learned judge we would observe that he found locus standi for the respondent on the basis that:

So long as the plaintiff has shown that he has the locus to make the application and so long as he can show that the conduct of the defendants is such as to put him, the plaintiff, in peril of such similar prosecution that the defendants could face if the defendants' act is allowed to be consummated, the plaintiff need not wait to see the outcome, before acting. To protect his own interest he can take out an injunction to restrain the defendants and if the court is satisfied that the act complained of could give rise to the plaintiff facing criminal prosecution, the plaintiff ought to be allowed to use injunctive measures to stop the defendants.

In the appeal before us, the respondent, as contended by the learned respondent's counsel, brought the action as a member of the Malaysian Bar and not as an ordinary member of the public. The EGM and the  resolution expose Bar members (which include the respondent) to proceedings for contempt and to charges under the Sedition Act and consequently expenditure of funds to defend the proceedings and the charges. On the basis of these facts, we feel that Gouriet's case is distinguishable and as the learned respondent's counsel contended, is not relevant to the appeal before us. Assuming that we are wrong here, we are of the view that the respondent had complied with the principles in Gouriet's case. Lord Diplock in Inland Revenue Commissioners v National Federation of Self-employed & Small Businesses Ltd [1982[Advocate and Solicitor] AC 617 at p 638 said:

'As respects the claim for a declaration considerable reliance was placed upon the recent decision of this House in Gouriet v Union of Post Office Workers (1978) AC 435, which held that a  private citizen, except as relator in an action brought by the Attorney-General, had no locus standi in private law as plaintiff in a civil action to obtain either an injunction to restrain another private citizen ( in casu, a trade union) from committing a public wrong by breaking the criminal law, or a declaration that his conduct is unlawful, unless the plaintiff can show that some legal or equitable right of his own has been infringed or that he will sustain some special damage over and above that suffered by the general public.' We are satisfied that the respondent, as a Bar member, 'will sustain some special damage over and above that suffered by the general public' if the injunction is not issued. It must at this juncture, be not forgotten that the respondent is a paying member of the Bar and payments are compulsory. He certainly has an interest in ensuring that the Bar does not involve itself in illegal activities or ultra vires acts.

94   There is no doubt that the doctrine of locus standi is far from settled. That was also the view of this Court in Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors And Other Appeals (supra). Thus, accepting for a moment the present incoherent nature of the doctrine, there is much force in what Mr Vijandran has submitted, that is, whether a member has the right to restrain a corporation from doing ultra vires acts. Incidentally from the excerpt hereinabove of the earlier judgment of this Court that question appears to have been answered in the affirmative. And we agree. The element of being a member of a statutory body is vital to come to such conclusion. The question of special damage in such situation plays a minor role.

95   Anyway the above principle is not novel. In Jenkin v Phamaceutical Society of Great Britain (supra) it was ruled that at common law a member of a society incorporated by Royal Charter is entitled to ask for an injunction to restrain the commission by the society of acts which are outside of the scope of the Charter and which might result in the forfeiture of the Charter and the destruction of the society. And quite recently that principle was referred to in the case of Bermuda Cablevision Ltd v Colica Trust Co Ltd (supra) where Lord Steyn delivering the opinion of the Privy Council said this p 210:

In a company law context a closer analogy than Gouriet v Union of Post Office Workers [1978] AC 435 and Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 is pro vided by the case of a company incorporated by Royal Charter. It has been held at common law that a member of such a society is entitled to an order restraining the commission of acts outside the scope of the charter which may result in the forfeiture of the charter and the destruction of the society: see Jenkin v Pharmaceutical Society of Great Britain [1921] 1 Ch 392, Dickson v Pharmaceutical Society of Great Britain [1970] AC 403. That is not altogether dissimilar from the complaint of Colica that the unlawful carrying on of business by Cablevision puts at risk the licence which is the lifeblood of Cablevision. But their Lordships would not press this analogy too far and would decide this point on a broader basis.

96   Accordingly we agree with Mr Vijandran that the strict application of the principle in Gouriet (supra) does not arise in view of the facts and circumstances of the instant appeals before us.

97   We are also unable to agree that the case of Ketua Pengarah Jabatan Alam Sekitar & Anor v Kajing Tubek & Ors & Other Appeals (supra) should be applied. As in Gouriet the respondent there was not a member of a statutory body or corporation seeking to prevent ultra vires acts.

98   To recap the respondent is a member of the Malaysian Bar and all he is asking is for this statutory body not to act beyond its statutory powers and duties. And premised on our concurrence that the proposed resolution of 12 October 1999, the holding of the proposed EGM and the proposed general meeting were ultra vires the LPA the question of locus standi of the respondent should not arise. It follows that there is no question of the civil court being asked to enforce any criminal law.

99   In any event it is also our opinion that the respondent had satisfied the 'special damage' test. Being a member of the Malaysian Bar he would definitely have been exposed to potential prosecution for sedition and contempt had the proposed EGM and the general meeting proceeded. The fact that he was only one of the many members should not negate his standing to sue on his own to ensure that he would not be exposed to unnecessary legal complexities. (see: Bateman's Bay Local Aboriginal Land Council and Anor v Aboriginal Community Benefit Fund Pty Ltd and Anor 155 ALR 684).

Appeal 521

100   In view of our above conclusions on the main issues, initially, we were not inclined to consider the other aspect of the complaint of the appellants in this appeal. However on further perusal we think we need to address it since Appeal 521 deals with the grant of an interlocutory injunction by the learned judge. In other words, was the learned judge correct when he allowed the application?

101   Mr Vijandran in arguing for Appeal 521 advanced his first contention in that the learned judge was correct in granting the interlocutory injunction on the basis of one particular issue. Learned counsel submitted that the learned judge was right in his approach by first seeking clarification from the appellants on the authenticity of the statements attributed to Dato' Dr Rais Yatim and the then Chief Justice. And he went on to argue that since the appellants informed the learned judge that they were not concerned with the truth and in view of the legal implication arising from those statements in the context of the decision in C Ravichandran Iyer (supra) which was followed by this court in its judgment in Rayuan Sivil No W-02-47 Tahun 2000 and Rayuan Sivil No W-02-48 Tahun 2000 there was sufficient basis, even on a singular issue, to grant the interlocutory injunction.

102   Mr Vijandran further submitted that the usual 'principles' guiding judges in considering applications for interlocutory injunction were not cast aside. He said that in exercising his discretion the learned judge considered the strong case established by the respondent premised on the unverified statements relied upon by the appellants to call for the proposed general meeting. On that score Mr Vijandran submitted that there was no necessity for the learned judge to deal with every elements of the 'principles' as enunciated in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504. And in any event learned counsel contended that the appellants did not challenge that the balance of convenience tilted in favour of the respondent bearing in mind the irreparable damages that could arise if the proposed general meeting were to proceed solely on the allegations contained in the unverified statements. Thus according to learned counsel there was no question of the learned judge having shifted the burden of proof when considering the application.

103   It was the grounds of appeal of the appellants that the learned judge did not go into the merits of the application and granted the interlocutory injunction based on preliminary point.

104   Now, the law on the grant or refusal of an interim injunction is clear. It involves the exercise of discretion. As to the mode of exercise pointers have been made as for instance in the case of Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 where it was outlined thus:

To summarize, a judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines:

(1)   he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried. He must, when considering this question, bear in mind that the pleadings and evidence are incomplete at that stage. Above all, he must refrain from making any determination on the merits of the claim or any defence to it. It is sufficient if he identifies with precision the issues raised on the joinder and decides whether these are serious enough to merit a trial. If he  finds, upon a consideration of all the relevant material before him, including submissions of counsel, that no serious question is disclosed, that is an end of the matter and the relief is refused. On the other hand if he does find that there are serious questions to be tried, he should move on to the next step of his inquiry;

(2)   having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case before him. He must weigh the harm that the injunction would produce by its grant against the harm that would result from its refusal He is entitled to take into account, inter alia, the relative financial standing of the litigants before him. If after weighing all matters, he comes to the conclusion that the plaintiff would suffer greater injustice if relief is withheld, then he would be entitled to grant the injunction especially if he is satisfied that the plaintiff is in a financial position to meet his undertaking in damages. Similarly, if he concludes that the defendant would suffer the greater injustice by the grant of an injunction, he would be entitled to refuse relief.

Of course, cases may arise where the injustice to the plaintiff  is so manifest that the judge would be entitled to dispense with the usual undertaking as to damages (see Cheng Hang Guan & Ors  v Perumahan Farlim (Penang) Sdn Bhd & Ors [1988] 3 MLJ 90). Apart from such cases, the judge is entitled to take into account the plaintiff's ability to meet his undertaking in damages should the suit fail, and, in appropriate cases, may require the plaintiff to secure his undertaking, for example, by providing a bank guarantee; and

(3)   the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo, an expression explained by Lord Diplock in Garden  Cottage Foods Ltd v Milk Marketing Board [1984] AC 130; [1983] 2 All ER 770; [1983] 3 WLR 143 and applied in Cheng Hang Guan. It is a judicial discretion capable of correction on appeal. Accordingly, the judge would be entitled to take into account all discretionary considerations, such as delay in the making of the application or any adequate alternative remedy that would satisfy the plaintiff's equity, such as an award of monetary compensation in the event that he succeeds in establishing his claim at the trial. Any question going to the public interest may, and in appropriate cases should, be taken into account. A judge should briefly set out in his judgment the several factors that weighed in his mind when arriving at his conclusion'--per Gopal Sri Ram JCA at p 206.

105   The question to ask therefore is: whether the learned judge failed to observe any of the guidelines above before granting the interlocutory injunction?

106   In his judgment the learned judge after dismissing the preliminary objections raised by the appellants went on to consider the basis of the allegations upon which the appellants relied on to call for the proposed general meeting. And he concluded thus:

Is not this condemning a person even without hearing that person. If the Malaysian Bar is not concerned with the truth or otherwise of the allegations but want to have this meeting only to satiate their hunger for a public debate over the chief justice by wresting the discussion from the general public and by so doing trying to show that they are protecting the sanctity of the judiciary, it seems to me that this effort is totally misconceived. To my mind there is no basis to call for an extraordinary general meeting on allegations attributed to someone who has not even been asked to verify its truth. There is no need for me to ask the plaintiff to even go into the merits of his application. On this one basic preliminary issue alone the 1st defendant has been unable to satisfy me. I therefore grant the plaintiff an order... .

107   At first blush the manner in which the learned judge came to his conclusion appears to be inadequate. And it could have avoided unnecessary argument if he had laid down properly his analysis of the issues before him. But we hasten to add that there is no strict requirement that such analysis must be systematic and perhaps erudite. Hence, in the instant appeal having read the judgment of the learned judge as a whole we do not think it can be disputed that he did acknowledge there were serious issues to be tried such as whether the allegations were true or plain hearsay, whether there was any basis to call for the suspension of the then Chief Justice and the consequence of the acts of the appellants. And such trend of thought could be gleaned from his judgment albeit obliquely when he said:

'It seems to me that whilst the Malaysian bar is making a serious allegation by calling for the suspension of the chief justice or for his removal, they are prepared to do so on mere unsupported allegations without even giving any thought to the principle of natural justice by seeking confirmation from Datuk Dr Rais Yatim if the contents of the report as contained in the newspaper cutting as attributed to him were actually spoken by him.'

108   And in our view the learned judge did consider where the justice of the case should lie. He took into account public interest as well. In fact he balanced the damage that could arise if the proposed general meeting was held and the basis for its calling by referring to the decision in C Ravichandran Iyer .

109   As regards damages it was contended for the appellants that expenses went to waste due to the grant of the interlocutory injunction. In our view no one should be blamed other than the appellants themselves. We agree with the learned judge when he said:

'The bar council in its public statement on the proposed general meeting of the bar said 'the bar as the natural friends, protectors and guardians of the sanctity of the judiciary is left with no option but to examine the whole matter and proposed solutions at a general meeting' It seems paradoxical that having proclaimed itself as the friend, protector and guardian of the sanctity of the judiciary, the Malaysian bar has totally ignored the basic precept of failing in its duty to listen to the other side. It listened albeit to unsupported statements allegedly attributed to the minister in the Prime Minister's Department and it rushed head on with its avowed aim of calling a meeting to discuss publicly no doubt within its confines, the conduct and behaviour of the highest official of the judiciary. Yet whilst pretending to protect the sanctity of the judiciary, it did not accord the chief justice the right to be heard before they even thought of convening this meeting.'

110   Accordingly as a whole we do not think we can plainly say that the learned judge exercised his discretion erroneously given the circumstances of the case. We are therefore not prepared to interfere as it does not warrant our interference.

Conclusion For Appeals 75 And 521

111   We find therefore no merit in any of the complaints raised in these main appeals and hence we dismiss them.

Recusal -- Appeal 512

112   This point comes under Appeal 512 which is an appeal against the decision of the learned judge dismissing a preliminary objection raised in connection with the application for interlocutory injunction under the second suit.

113   The thrust of the contention of the appellants is twofold. Firstly, that the learned judge should have recused from hearing the application since he had already made a decision on the same or very similar issues in the first suit, that is related to Appeal 75 herein and secondly that the same Judge had earlier on heard and dismissed an application to amend the pleadings in another unrelated suit and which proposed amendment was subsequently incorporated into the defence in the first suit.

114   In other words it was the appellants' complaint that the learned judge should have not proceeded to hear the application for interlocutory injunction under the second suit since he had already decided on the same or very similar points in another suit between the same parties. Mr Loh for the appellants went on to point out the similarities in the relief sought for in the first and second suits to substantiate his argument.

115   And it is also the submission of Mr Loh that this recusal point should not be relegated as mere academic issue since neither the supporting facts nor the substratum of the litigation giving rise to the issue have vanished nor ceased to exist. Further he submitted that the parties are still very much affected by the outcome of any decision, the costs remains at large, the parties are still very interested in the issue and a decision on the issue does not merely serve as an obiter in relation to the error of an earlier decision.

116   Mr Vijandran gave quite a short answer to this complaint. He did not deal with the contention that the issue had become academic and we think rightly so. Instead he submitted that the appellants had it all wrong as to the facts of the suits referred to. He began by pointing out that in the memorandum of appeal the reference to the case No S2-23-42 of 1996 by learned counsel for the appellants had nothing to do with the respondent or the first suit. Hence learned counsel argued that there was no ground for the submission of learned counsel for the appellants to sit on.

117   Alternatively, Mr Vijandran submitted that there was no basis for the appellants to say that two similar cases were heard by the learned Judge. According to learned counsel the facts of the suits referred to were different. And he contended that although the questions of law might be the same or similar, that should not debar the learned judge from hearing the suits.

118   In respect of the application to amend pleadings in another unrelated suit which allegations the appellants contended were subsequently incorporated into the defence of the first suit, Mr Vijandran argued that what was before the learned judge then was purely an application to amend and not as to the truth of the allegations.

119   We note that the submissions of Dato' Loh on the issue were made with vigour and perhaps conviction. But having deliberated on the diverse arguments before us we are inclined to agree with the submissions of Mr Vijandran. On his first point we are amenable to the view that it could have been just an oversight. Thus nothing turns on that. But there is much force in the alternative contention. Indeed it is clear that the two suits of the respondent were founded on two different sets of facts although the points of law may be similar. And no authority was cited to us enunciating a principle of law that would have been a basis for the learned judge in the instant appeal to recuse from hearing the second suit.

120   As to the argument that the learned judge had also heard the application to amend the pleadings in another unrelated suit which he then dismissed, we find such argument to be an obvious indication of being plainly averse to the learned judge regardless of the reason. For it is elementary that the criteria to consider in an application to amend pleadings are entirely different. There was also no assertion that the learned judge had ruled on the truth or falsity of the allegations which became part of the defence in the first suit when he was considering the application to amend.

121   If we were to agree with the contentions of Dato' Loh then we might end up setting a precedent where no judge can hear any two cases with similar issues. That would be stretching too far the principles of law enunciated on when judges and arbiters should recuse from hearing cases. The primary questions to consider should be: whether 'there was a real danger of bias on the part of the learned trial Judge' (see Mohamed Ezam bin Mohd Nor & Ors v Public Prosecutor [2002] 1 MLJ 321 FC) and whether the allegation and the factual circumstance could have 'caused a fair-minded and informed bystander to entertain a fear of real danger of bias' -- (see Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd & Ors [2002] 4 MLJ 327; Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 All ER 65). Of course these questions would not be answered fairly by anyone who has a preconceived mind towards any particular judge or arbiter. In this instant appeal we find that the appellants have not succeeded in convincing us that their contentions bear the affirmative answers to those primary questions.

122   We note that the matter before the learned judge was only an application for an interlocutory injunction. Any allegation of bias may be premature. Indeed this court has opined before that in such a case 'a judge may grant an interlocutory injunction because he finds a particular line of defence taken to be untenable and yet, after hearing all the evidence and detailed argument at the trial, reach the opposite conclusion and dismiss the suit. I cannot help but think that such an occurrence is commonplace in our courts as it is indeed in other jurisdictions' (see Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213).

123   For the foregoing reasons we find no merit in this instant appeal and we dismiss it.

Secrecy -- Appeal 780

124   This appeal relates to the first suit. It revolves on the interpretation of s 76(2) of the LPA. The appellants are dissatisfied that one Mr R Rajasingam who was then a member of the Bar Council was allowed to be called as a witness by the respondent during the hearing of the first suit and to answer a specific question, that is, whether the motion proposed by the Bar Council was the same as the proposed resolution of 12 October 1999 to be tabled during the proposed EGM.

125   Section 76(2) which came into force on 16 December 1983 vide the Legal Profession (Amendment) Act 1983 (Act A567/83) reads:

'(2)  Except and in so far as may be necessary for the purpose of giving effect to any resolution passed or decision made, secrecy shall be maintained in all proceedings conducted by the Bar Council, the State Bar Committee, the Inquiry Committee and their staff.'

126   It was the submission of Ms Sreenevasan that the s means what it says, namely, prohibition against disclosure of what transpired during any proceeding conducted by any of the entity referred thereto. And she argued that s 123 of the Evidence Act 1950 ('the Evidence Act') should not be applied. She cited the case of Maju Holdings Sdn Bhd v Kamala Devi a/p Ramadass & Anor And Another Appeal [2003] 2 MLJ 36. But it should be noted that that case was dealing with secrecy under the Banking and Financial Institutions Act 1989 ('BAFIA').

127   The alternative argument presented was that even if the learned judge was right in relying on the provisions of the Evidence Act he failed to comply with the requirements of the provisions before admitting any evidence through Mr R Rajasingam.

128   In reply Mr Vijandran submitted that the learned judge was right in his approach on the issue. He argued that s 76(2) of the LPA regulates the interaction between members and should not be extended to court proceeding. He pointed out that that section did not oust the operation of the Evidence Act.

129   As regards the argument that there was no proper observation of the provisions of the Evidence Act before admitting the documentary evidence, Mr Vijandran said that such point should only be considered if there was any challenge to the relevancy of such documents. Since there was none the argument should fail.

130   On this issue the learned judge said:

'Having gone through the various authorities, I held that it is the Evidence Act that determines the admissibility of any evidence in a Court of law, and in respect of this case I held that the relevant provisions for consideration ought to be sections 123 and 162(2) of the Evidence Act 1950. I also held that there was nothing in the LPA  that excluded the application of the Evidence Act. I therefore held that the meaning of the word 'secrecy' given to s 76(2) of the LPA is that all decisions and discussions or resolutions passed that relate to investigations relating to the conduct or affairs (or complaints) against members of the Bar are the matters that ought to be kept secret to protect the interest of such members, lest the conduct and affairs of members or any complaints against any members be discussed by the Council or Committee members in the open. I rejected the defendants' request to apply the literal interpretation to the meaning of the word 'secrecy'.

131   With respect the short answer to the complaint of the appellants is found in s 2 of the Evidence Act which states:

'This Act shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator.'

132   Hence, unless it is expressly excluded we are of the view that the provisions of the Evidence Act apply in any court proceedings. We find no expressed exclusion in s 76(2). Accordingly sections 118 and 136 would have been the provisions in answer to the objection when Mr R Rajasingam was called as a witness. Further there is no provision in the Evidence Act which allows a witness to rely on a statutory protection such as contained in s 76(2).

133   We find no merit in this appeal and we dismiss it.

Order 33 -- Appeal 647

134   For this appeal we have already summarized the complaint of the appellants hereinabove.

135   Mr Vijandran in reply submitted that it was a matter of exercise of discretion by the learned Judge. And he said that the issue as framed took into account the concerns of the appellants and would finally dispose of the action. As regards the calling of witnesses learned counsel argued that the learned judge gave the parties liberty to call witnesses.

136   In his judgment the learned judge ruled, inter alia:

I am of the view that the plaintiff was perfectly right to move this court under O 33 r 2 of the RHC. The issues and the grounds to back up the application are matters of law and if the defendants contend that they need to call witnesses, I had made an order allowing them to do so. After all since notice to cross-examine on the affidavit can be served to allow for oral evidence to be admitted, I did not see anything wrong in allowing the defendants the right to call any witness in support, instead of filing an affidavit ... . Therefore where the court is of the view that the issues could be decided without the need for a prolonged trial, the court ought to move under O 33 r 2 to be read with r 5. In respect of the defendants' submission, I hold that where contempt and sedition are concerned, intention or motive is irrelevant and immaterial. Therefore, the defendants' argument that e vidence must be led to show intention and the motive for calling the EGM and moving the resolution, is no longer meritorious.

Before I could make a decision, counsel for the 2nd defendant then suggested that the proposed question should be as follows:

That whether the said EGM and the said proposed Resolution constitute contempt of court and whether the said EGM and the said proposed Resolution constitute offences under the Sedition Act 1948 and if the answers to the said two questions are yes then whether the said EGM and the said proposed Resolution are ultra vires the LPA 1976? I took this to mean that the 2nd defendant at least was conceding to the approach taken by the plaintiff in proceeding under O 33 r 2 of the RHC, except that he wished the question to be rephrased as suggested by the 2nd defendant. It was indeed a surprise when I received notification of the appeal.

In any case, I was completely satisfied that this case should proceed under O 33 r 2 read together with r 5 ... . I also ordered that parties, if they wished, be permitted to adduce oral evidence; otherwise the case to proceed based on the pleadings, the affidavits filed, and the Agreed Statement of Facts ('B').'

137   First the law. For O 33 of the Rules to apply the issues in a case should be clear and not riddled with complexities and the facts should not be in dispute. 'Where the issues on point of law to be decided involve the consideration of facts, resort to O 33 r 2 is inappropriate. It is undesirable to resolve such issues on a purely hypothetical state of facts' -- (see Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474); Arab Malaysian Finance Bhd v Meridien International Credit Corporation Ltd London [1993] 3 MLJ 193).

138   It appears that the main complaint of learned counsel for the appellants is that O 33 should not have been applied since intention and motive are necessary ingredients before any finding for contempt and sedition can be arrived at. Otherwise there were hardly any disputed facts on the issues to be determined especially with the Agreed Facts 'B' as amended available.

139   Now, it was held that mens rea is not an element that has to be proved to establish contempt. And neither is motive. This view was expressed by this court in Murray Hiebert v Chandra Sri Ram [1999] 4 MLJ 321. And we reaffirm that view.

140   Since it is only for the purpose of establishing intention or motive that the appellants might call witnesses we find therefore that the learned judge was right in allowing the invocation of O 33.

141   Similarly, for sedition the 'intention of the accused when he made the speech and used words which are alleged to be seditious is not material or relevant for it is provided in s 3(3) of the Sedition Act that the intention of the speaker shall be deemed to be irrelevant if in fact the words have a seditious tendency' per Ajaib Singh J (as he then was) in Public Prosecutor v Oh Keng Seng [1979] 2 MLJ 174. The then Federal Court affirmed the decision of the High Court. (see Oh Keng Seng v Public Prosecutor [1980] 2 MLJ 244).

142   Accordingly we find no reason to fault the learned judge in proceeding with the hearing of the first suit by way of O 33. Our inevitable conclusion is that this appeal is dismissed as we find no merit in the complaint thereof.

Overall Conclusion

143   For the reasons given we dismiss these appeals. And since these appeals were filed separately though before us they were heard jointly, it is only appropriate that we allow costs to each of the appeals to be taxed and paid to the respondents. Deposits paid to account for taxed costs.

Appeals dismissed with costs.

COUNSEL:

YM Raja Aziz Addruse (Christopher Leong, Leo Su Chang, Ambiga Sreenevasen, Ranjit Singh, Kalvin Seet, James Kong, Gopal Sreenevasen with him) (Chooi & Co and Sivananthan) for the appellants.

DP Vijandran (DP Vijandran & Associates) for the respondent.