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DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO. W-02-568-05

ANTARA

BADAN PEGUAM MALAYSIA …PERAYU

DAN

LOUIS EDWARD VAN BUERLE …RESPONDEN

Koram: Y.A. Datuk Denis Ong Jiew Fook, HMR
Y.A. Dato’ Abdul Aziz Bin Mohamad, HMR
Y.A. Dato’ James Foong Cheng Yuen, HMR

JUDGEMENT OF JAMES FOONG, HMR

Introduction

This is an appeal by the Bar Council Malaysia, the appellant, against the decision of the learned High Court Judge, Mr. Justice Raus Sharif, who allowed the application of the respondent, a member of the Malaysian Bar, for the following relief:

1. A declaration that the 59th annual general meeting of the Malaysian Bar for year 2004/2005 held on Saturday, 19th March 2005 at the Nikko Hotel is invalid and be set aside.

2. A declaration that the decisions and resolutions passed at the 59th annual general meeting be declared invalid and be set aside.

3. A declaration that the election of the principal office bearers of the Bar Council be deemed void and be set aside.

4. An order that the outgoing Bar Council elected for the year 2004/2005 or the new members of the Bar Council elected for the year 2005/2006 convene a new annual general meeting within 30 days from the date of this court order granting the respondent’s application to conduct the business of the Malaysian Bar as provided under the Legal Profession Act, 1976 (LPA).

Background

The dispute in this case arose in the following manner. The appellant is a body corporate established under section 41 of the LPA. The management of the affairs of the appellant is vested, by virtue of section 56 of the LPA, in the hands of the Bar Council. The Bar Council consists of elected members from the Malaysian Bar as well as the respective chairmen of the State Bars with its elected representatives and the immediate past President and Vice-President of the Malaysian Bar. Between them, they elect a President, a Vice-President and a Secretary.

On 19th March, 2005, at 10.00 a.m., the Malaysian Bar held its 59th annual general meeting at the Grand Ballroom of Nikko Hotel in Kuala Lumpur. This is a mandatory meeting under section 64(1) LPA. There were only 1152 members present. When the President of the Malaysian Bar proceeded to refer to the agenda in this meeting, a point of order was called and the question was raised as to whether there is a quorum of one-fifth (1/5th) of members of the Malaysian Bar present at this meeting. The President of the Malaysian Bar informed members present that the appellant has sort (sic) four legal opinions from its solicitors with regard to this issue on quorum requirement for an annual general meeting pursuant to section 64 LPA and, having considered and deliberated on these legal opinions, took the position that an annual general meeting of the Malaysian Bar can be conducted without a need for one-fifth of the members of the Malaysian Bar present. There was a discussion on this subject where diverse views were expressed. The President of the Malaysian Bar, having listened and considered these, ruled that the 59th annual meeting of the Malaysian Bar would proceed accordingly as there is no legal requirement that a quorum of one-fifth of the members must be present at the annual general meeting of the Malaysian Bar.

The plaintiff and a few other members walked out of the 59th annual meeting of the Malaysian Bar, and on the 4th April 2005, the plaintiff instituted this legal action against the appellant.

From these undisputed facts the principal issue, as correctly identified by the learned trial Judge, in this case is: whether a quorum of less than one-fifth of the total number of members of the Malaysian Bar is required to be present for business to be transacted at an annual general meeting of the Malaysian Bar. In order to fully appreciate and understand the difference in opinion between the parties in this action, it is necessary, at the outset, to set out sections 64 to 67 of the LPA relating to meeting of the Malaysian Bar.

“General Meeting of the Malaysian Bar”

Annual general meetings

64. (1) The Bar Council shall each year convene an annual general meeting of the Malaysian Bar to be held before the first day of April.

(2) The Bar Council shall cause to be prepared and presented to the annual general meeting-

(a) a report on the activities of the Malaysian Bar during its term of office;

(b) proper accounts, duly audited, of all funds, property and assets of the Malaysian Bar for the twelve months terminating on the 31 day of December immediately preceding such general meeting.

General meeting

65. (1) The Bar Council may convene a general meeting of the Malaysian Bar other than the annual general meeting at any time the Bar Council considers it necessary or expedient.

(2) Any fifty members of the Malaysian Bar may at any time requisition a general meeting by written notice in that behalf signed by them and served on the President, Vice-President or the Secretary of the Malaysian Bar, and the Bar Council shall convene a general meeting to be held within thirty days of such service.

(3) The written notice shall specify the object or objects of the proposed meeting.

(4) If the Bar Council fails to convene a general meeting in accordance with the requisition within thirty days of the service of such requisition, the requisitioning members may convene the general meeting within sixty days of such service.

(5) If any member of the Malaysian Bar desires to propose any motion to be considered at the annual or other general meeting to be convened under this section, he shall not less than seven days before the date of the meeting serve upon the Secretary of the Malaysian Bar notice of such motion in writing.

Voting

66. At every general meeting other than an annual general meeting, every member present shall have one vote and the Chairman of that meeting shall have a casting vote.

Quorum

67. (1) The quorum for a general meeting of the Malaysian Bar shall be one-fifth of the total number of members of the Malaysian Bar personally present or any greater number as shall be provided under any rules made pursuant to section 42(2)(d) and no business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business.

(2) Any general meeting, whether convened on the requisition of members pursuant to section 65(2) or convened pursuant to section 65(4), shall be dissolved if a quorum is not present within half an hour from the time appointed for holding the meeting.

(3) Any question at a general meeting of the Malaysian Bar shall be decided by the votes of not less than two-thirds of the members present and voting”.

Arguments of the respondent before the trial Judge

The arguments of the respondent before the trial Judge were basically these: With the opening words in section 67(1) LPA under the marginal note “Quorum” which states that “The quorum for a general meeting of the Malaysian Bar shall be one-fifth of the total number of members of the Malaysian Bar personally present …” must be implied to mean that this faction of the members of the Malaysian Bar must be present to legally constitute an annual general meeting of Malaysian Bar. When such number was not achieved on the 19th March 2005, the 59th annual general meeting of the Malaysian Bar could not have been properly constituted; rendering the purported meeting null and void.

Arguments of the appellant before the trial Judge

The appellant however maintained in the Court below that since the opening words of section 67(1) LPA excludes the phase (sic) “annual general meeting” then the quorum requirement of one-fifth of the members of the Malaysian Bar present at an annual general meeting does not apply. The required number under section 67(1) of the Act is only confined to general meeting and not annual general meeting. Section 64 LPA must be read independently of section 67(1) LPA.

To support this argument, the appellant highlighted to the learned trial Judge the distinction between annual general meeting and general meeting of the State Bars where sections 70(2) and 70A(2) LPA expressly demand a quorum of one-third of the total number of members of the State Bar present for these two types of meeting at the State Bar level. Since similar provision is not mentioned in the LPA for the annual general meeting of the Malaysian Bar, then it must be implied that the one-fifth quorum requirement under section 67(1) LPA does not apply to such annual general meeting. If Parliament had intended for a specific quorum requirement for an annual general meeting of the Malaysian Bar then similar provision as the State Bars’ annual general meeting would have been enacted.

Further, the appellant disclosed to the trial Judge that initially the quorum requirement under section 67(1) LPA only demands the attendance of 50 members of the Malaysian Bar present. But in 1978, by an amendment to the LPA, this was increased to one-fifth. The reason behind this amendment was due to an incident where a resolution was passed at a general meeting of the Malaysian Bar to boycott defending cases brought by the prosecution under the Essential (Security Cases) Regulations 1975 (ESCAR). Since this resolution originated from a general meeting of the Malaysian Bar attended by less than 200 members of the Malaysian Bar out of a total of 1,800, the Government felt that to safeguard greater participation of members of the Malaysian Bar at such meeting, there should be a one-fifth of the total number of members of the Malaysian Bar present to constitute such meeting. But at no time, the appellant emphasized, that such quorum requirement applies to an annual general meeting where only routine matters, such as the two statutory items stated in section 64(2) LPA i.e. (a) the tabling of the Bar Council report on the activities of the Malaysian Bar during its term in office and; (b) audited accounts for the same period are to be dealt with.

Judge’s grounds

After ably and succinctly setting out the facts and the issue, the learned trial Judge gave the following reasons for allowing the respondent’s application.

First, he is of the view that the term general meeting of the Malaysian Bar in the LPA refers to both annual general meeting under section 64 LPA and, general meeting under section 65 LPA. The fact that it is an annual general meeting does not make it less a general meeting. To support this proposition, the learned trial Judge cited a passage of Brinsden J in an Australian case of Harman v Energy Research Group Australia Ltd; Davidson v Energy Research Group Australia Ltd (1985) 3 ACLR 538 which states:

“there is no magic in the use of the word “general”. If all the members meet, it seems to me that the meeting must be a general meeting, although at the same time, it may also be an extraordinary general meeting or an annual general meeting”.

Second, though the learned trial Judge conceded that section 64 LPA is silent on the quorum requirement, he is of the view that it does not necessarily or automatically (support) the contention of a no quorum requirement for the annual general meeting of the Malaysian Bar. This is because section 64 of the LPA does not stand on its own nor is it independent or self contain (sic). Thus, this section cannot be interpreted to exclude sections 65 and section 67 of the LPA. The general heading of sections 64 to 67 LPA, which reads “General meeting of the Malaysian Bar” encompasses both annual general meeting under section 64 and general meeting under section 65 LPA.

Third, the learned Judge felt that if one were to exclude the one-fifth-quorum requirement in section 64 then there would be absurdity. He gave an example that an important motion or proposed resolution may be dealt with and passed at an annual general meeting but required a one-fifth number of members present when tabled at a general meeting. This, according to the learned Judge is not the intention of Parliament when amending section 67 (1) LPA to increase the quorum for general meeting.

Fourth, to conclude, the learned Judge opined that the absence of any mention on quorum requirement under section 64 for an annual general meeting is “because the words ‘general meeting’ are used generically with respect to general meeting of the Malaysian Bar, whether it is the annual general meeting under s.64 or the general meeting under s.65”.

Approach

For the purpose of this appeal, I shall deal with each of the grounds raised by the appellant during this appeal.

1st ground: Marginal Note

The appellant commenced by submitting that the learned trial Judge has erred in failing to draw a distinction between an annual general meeting under section 64 of the LPA and a general meeting in section 65 of the LPA; choosing instead to rely on the general heading which reads ‘General Meeting of the Malaysian Bar’ and ignoring the marginal note.

There is no doubt that going by current case law, the modern approach is to accept marginal notes as an aid to statutory interpretation when, previously, it was a taboo to do so. This is clearly shown in the case of Chai Siew Yin v Leong Wee Shing (2004) 2 AMR 358 where Gopal Sri Ram J in the Court of Appeal announced that:

“we can use it to interpret the section …it is true that at one time it was taboo to use a marginal note as an aid when interpreting a statutory provision. If you look at the old cases; even those decided in the 1960’s; you will see a refusal by judges to rely on the marginal note as an aid to interpretation … But the modern approach is far more liberal. It is exemplified by what Augustine Paul JC said in Ganesan a/l Singaram v Setiausaha Suruhanjaya Pasukan Polis & 3 Ors (1998) 1 AMR 126; (1998) 1 MLJ 240 which I consider to be the correct statement of the law:

“A marginal note to a section is part of the statute. It may be considered in construing the section or any other provision of the statue, provided due account is taken of the fact that its function is merely to serve as a brief guide to the contents of the section...”

Further guide on the use of marginal note as an assistance to statutory interpretation is found in the statement by Lord Upjohn in Stephens v Cuckfield Rural District Council (1960) 2 QB 373:

“While the marginal note to a section cannot control the language used in the section, it is at least permissible to approach a consideration of its general purpose and the mischief at which it is aimed with the note in mind.”

Though marginal note can be used as a guide but one must not forget that it is only a sub-signpost in the LPA. There is a main sign in the form of a general heading. Similar to a marginal note, this general heading, which is the overall signpost, can also be called on to assist in the interpretation of a statute. The general heading has these words printed: “General meeting of the Malaysian Bar”. The words “General meeting” here must be considered to mean both annual general meeting and general meeting since these two types of meeting are described under sections 64 to 67 LPA where these provisions are encapsulate (sic) under this general heading. Except where there is an explicit declaration to exempt its use to annual general meeting with the phrase “other than annual general meeting”, as can be seen in section 65 and 66 LPA, then the term general meeting used under all sections of the general heading must include both annual general meeting and general meeting.

One may argue against this by highlighting section 65 (2) and 65 (4) LPA where the words “general meeting” is (sic) used without the qualification (“other than general meeting”) and yet such meeting is definitely of a general meeting nature. This argument in my view can easily be counteracted by looking at the contents of section 65 LPA itself where, at the outset, under section 65 (1) LPA the type and nature of meeting under consideration thereafter is that of a general meeting. There is, thus, no necessity for such similar qualification repeated in section 65 (2) and (4) LPA to indicate once again that the general meeting so stated is that of a general meeting nature. This is unlike section 67 (1) LPA. There the words “general meeting” has no qualification. And with the use of the general heading and the marginal notes as guides, the interpretation of “general meeting” here must include both annual general meeting and general meeting.

2nd ground: What would be the number to make a quorum.

The next issue is: If no quorum is to be fixed for an annual general meeting then what would be the number of members present to constitute such meeting?

The stand taken of the applicant is “whoever are present at the AGM of the Malaysian Bar constitute the quorum”. When pressed further for clarification by this Court as to what number would constitute a minimum quorum, the reply was “two persons would constitute a meeting”. This, to my mind goes against the very intention and objective of Parliament to prevent a small number of members of the Bar to call for a general meeting of the Malaysian Bar and pass any resolution without the participation of a larger group as was experienced by the events that led to the 1978 amendment to section 67 LPA.

As pointed out by the learned trial Judge, if the proposition of the applicant is accepted, then a motion or a proposed resolution could be carried or passed (without the one-fifth quorum required) when tabled or brought at an annual general meeting whilst such motion or proposed resolution fails in a general meeting if the quorum of one-fifth is not achieved. In fact going by this concept of the appellant, theoretically all you need is just two members of the Malaysian Bar present at an annual general meeting to pass a member’s resolution. This is possible since any member can table a resolution at an annual general meeting by serving upon the Secretary of the Malaysian Bar notice of such motion in writing under section 65(5) LPA. And in the past, records have revealed that numerous contentious and explosive resolutions were tabled at annual general meetings.

3rd ground: Agenda in an annual general meeting

The appellant has attempted to impress upon this Court that annual general meeting of the Malaysian Bar is a mere formality since the election of office bearers for the term, which is often a hot topic in the agenda for such meeting, has already taken place by way of postal votes prior to the annual general meeting as provided under the LPA. But, to me, this is an understatement. There is still the two mandatory statutory items to be tabled: (a) report of the Bar Council for that term and; (b) accounts for the term. When tabled they would be debated upon and either passed or rejected. In many meetings of corporations, such items in the agenda are often subjected to intense scrutiny and heated debate, particularly the latter. Fiery questions are often asked and many committee members are brought to books if no satisfactory answers are provided. And to allow such significant matters to be passed by a mere minimum of two is, to my mind, not the intention of Parliament.

4th ground: Comparison with provision for State Bar meetings

The appellant has complained that the learned trial Judge has failed to draw a conclusion that since there is no provision similar to that of a quorum requirement (of one-third members of the State Bar present at annual general meeting of State Bar as found in section 70(2) LPA) then it must be implied that Parliament intended to waive a quorum requirement for an annual general meeting of the Malaysia Bar. I do not think that this is a fair observation. From the grounds of judgment it is obvious that the learned Judge has rejected this proposition when he ruled that the term general meeting applies equally to annual general meeting, requiring the quorum one-fifth of the total members of the Malaysian Bar present. This provision is already catered for in section 67(1) LPA which, as affirmed earlier, applies to annual general meeting by the application of the words 'general meeting'.

5th ground: Purposive approach

The appellant has also charged the learned trial Judge for failing to adopt a purposive approach in analyzing LPA, specifically section 64. On this, the appellant quoted the following passage of Lord Griffiths in Pepper v Hart (1993) AC 593 which is adopted by our Federal Court in Palm Oil Research and Development Board Malaysia & Anor v Premium Vegetable Oils Sdn. Bhd. (2004) 2CLJ 272:

“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which legislation was enacted”.

When the once forbidden document of the Hansard that contains the Parliamentary debates was examined by me, particularly that of 13.1.1978, which recorded the debate in the Senate on the proposed amendment to section 67(1) LPA demanding a one-fifth quorum, I discovered that there was direct reference of this to annual general meeting of the Malaysian Bar. Senator Kamarul Ariffin speaking in the Senate highlighted to the then Minister of Law that the Malaysian Bar may face difficulties in securing such number of its members to attend an Annual General Meeting of the Malaysian Bar. In response, the then Honourable Minister of Law retorted that if members of the Malaysian Bar care and value the integrity of their organization, they must ensure attendance at such annual meeting out of a sense of duty and concern. For this, the one-fifth quorum requirement should be maintained for such meeting. This disclosure is sufficient to defeat the argument of the appellant that if a purposive approach was adopted by the trial Judge, the intention of Parliament is to exclude the one-fifth quorum requirement.

6th ground: Comparison with Singapore Legal Profession Act

The appellant has brought to the attention of this Court a number of similar provisions covering meetings in the Singapore Legal Profession Act 1967. According to appellant’s counsel, Malaysia borrowed these provisions from the Singapore Legal Profession Act 1967 and incorporated most of them in verbatim. And in the Singapore Legal Profession Act 1967, there is no quorum requirement for an annual general meeting.

I took pains to examine in detail the Singapore Legal Profession Act 1967. Though our sections 64, 65 (to a certain extent) and 66 LPA are similarly worded as the Singapore Act but when it comes to the quorum provision, material differences exist. There it is governed by the Singapore Law Society bye-laws with a built in requirement that says: “shall not provide for a quorum at a General Meeting other that the Annual General Meeting of less that 50 practitioner members personally present”. Our section 67 LPA is completely different. Though it is said that there is never a quorum requirement in the Singapore Law Society for its annual general meeting but this proposition has never been challenged. It has not stood the test, as yet. Unlike its counterpart in Malaysia, this issue is now before the Courts for interpretation. For these, I am of the view that the Singapore scenario is a poor example.

7th ground: Previous practice

Turning against the argument of the respondent that the Bar Council has for the past years accepted the practice of a one-fifth quorum requirement for a properly constituted annual general meeting, the appellant highlighted the predicament of the Malaysian Bar that if such quorum requirement is not attained, there would be no Bar Council consisting of incoming elected members to carry out statutory duties demanded of the Bar Council. In other words, this requirement of one-fifth quorum would estop a statutory body, such as the Bar Council, from carrying out its statutory duties. These include: (a) the issuance of Annual Practicing Certificate to members of the Malaysian Bar; (b) the representation by the President of the Malaysian Bar to the Disciplinary Board; and (c) the representation of the President of the Malaysian Bar to the Qualifying Board that examines eligible candidates to qualify for the Malaysian Bar. To support this argument, the Federal Court case of Public Textiles Berhad v Lembaga Letrik Negara (1976) 2 MLJ 58 was cited.

There is no necessity to delve in depth into this issue. As pointed out by Encik Zainur Zakaria, counsel for the respondent, the appellant has “completely missed the point”. The respondent, and I agree, is not raising estoppel to prevent the Malaysian Bar from performing its statutory duties. On the contrary, the respondent is seeking an order to compel the Bar Council to call for a legally constituted annual general meeting so that the in-coming office bearers could proceed to carry out the statutory duties of the Bar Council.

The appellant has approached this matter by highlighting the predicaments of the Malaysian Bar: if a liberal and wide interpretation is not pronounced, then there would be a standstill in the Malaysian Bar, with grave consequences. I am not attracted by this downcast prediction. All that the law requires, from my point of view, is for the Bar Council to call for a legally constituted annual general meeting. For this, a quorum of one-fifth of the members of the Malaysian Bar present at such meeting is required under section 67 (1) LPA. If such a quorum were not achieved then the meeting would stand adjourned. This, as facts disclosed, is virtually a perennial encounter. But the law requires such number of members to attend such meeting and it must be impressed upon them that if they fail to do so then the consequences are grave. Adding to this, I would reiterate what the Honourable Minister of Law said in Parliament in 1978, that members of the Bar should have pride in their profession and should attend such meeting out of concern and care for the body they belong. If at all there is a need to amend the law, as all parties to this suit knows (sic), the Court is not the forum to undertake such task; the August body of Parliament is.

8th ground: Justice Brinsden’s proposition

Finally, based on the grounds as discussed, I find that Justice Brinsden’s proposition in Harman v Energy Research Group Australia Ltd; Davidson v Energy Research Group Australia Ltd (1985) 3 ACLR 538 of there being:

“no magic in the use of the word “general”. If all the members meet, it seems to me that the meeting must be a General Meeting or an Annual General Meeting.”

though is spoken in the context of company law equally and adaptly applies to the circumstances of this case that concerns meetings under section 64 & 65 LPA.

Conclusion

For reasons above, I am of the opinion that this appeal should be dismissed.

Dated this 18th day of July 2005.

t.t. Dato’James Foong
(DATO’JAMES FOONG)
Court of Appeal Judge
Putrajaya

Counsel For the Appellant

Tuan Haji Sulaiman bin Abdullah
Y. Bhg. Dato’Cecil Abraham
Encik Tommy Thomas
Encik Robert Lazar
Encik Sunil Abraham
(M/s Shearn Delamore & Co.)

Counsel For the Respondent

Encik Zainur Zakaria
Encik V. Arivanandan
(M/s Cheong Wai Meng & Van Buerle)