Dato' Ting Cheuk Sii v Datuk Hj Muhammad Tufail Bin Mahmud & 8 lagi 2008 [CA]

IN THE COURT OF APPEAL OF MALAYSIA
(APPELLATE JURISDICTION)
CIVIL APPEAL NO: Q – 02 – 724 – 2007

BETWEEN
DATO’ TING CHEUK SII ... APPELLANT
AND
1. DATUK HJ MUHAMMAD TUFAIL BIN
MAHMUD
2. HITOSHI MIYAMOTO
3. SHIRO NODA
4. SHOZO NODA
5. MOHAMAD FAROUK BIN MOHAMMAD
TUFAIL
6. DRAMAN @ MORSHIDI BIN OMAR
7. ISHINOMAKI PLYWOOD MANUFACTURING COMPANY LTD
8. HAMIDAH TRADING SDN BHD
9. SANYAN WOOD INDUSTRIES SDN BHD ... RESPONDENTS

(In the matter of High Court in Sabah and Sarawak at Kuching
Originating Petition No: 26–05–2006–II
In the matter of SANYAN WOOD INDUSTRIES SDN BHD
And
In the matter of section 181 of the
Companies Act 1965
And
In the matter of order 88 rule 5(h)
of the Rules of High Court 1980
Between
Dato’ Ting Cheuk Sii ... Petitioner
And
1. Datuk Hj Muhammad Tufail bin Mahmud
2. Hitoshi Miyamoto
3. Shiro Noda
4. Shozo Noda
5. Mohamad Farouk bin Mohammad Tufail
6. Draman @ Morshidi bin Omar
7. Ishinomaki Plywood Manufacturing
Company Ltd
8. Hamidah Trading Sdn Bhd
9. Sanyan Wood Industries Sdn Bhd ... Respondents)

TOGETHER WITH
CIVIL APPEAL NO: Q – 02 – 729 – 2007
BETWEEN
DATO’ TING CHEUK SII ... APPELLANT
AND
1. DATUK HJ MUHAMMAD TUFAIL BIN
MAHMUD
2. SANYAN HOLDINGS SDN BHD ... RESPONDENTS
(In the matter of High Court in Sabah and Sarawak at Kuching
Originating Petition No: 28–32–2006–II
In the matter of Section 218 of the
Companies Act 1965
And
In the matter of SANYAN
HOLDINGS SDN BHD (Company
No. 413109–V)
Between
Dato’ Ting Cheuk Sii ... Petitioner
And
1. Datuk Hj Muhammad Tufail bin Mahmud
2. Sanyan Holdings Sdn Bhd ... Respondents)
3
Coram: Gopal Sri Ram, J.C.A.
Mohd Ghazali bin Mohd Yusoff, J.C.A.
Tengku Baharudin Shah bin Tengku Mahmud, J.C.A.

JUDGMENT OF THE COURT

1. There are two appeals before us. Both arise from the decision of the High Court in Kuching, Sarawak. One is directed against the order of the High Court dismissing a petition presented under section 181 of the Companies Act 1965. The other is directed against the dismissal of a winding up petition. Both appeals were fixed before this court at its sitting at its principal Bench in Putrajaya on 8 October 2008. When they were called on, the appellant was represented by Mr T. Thomas, an advocate of the High Court in Malaya leading other advocates from Sarawak. The respondents were represented by counsel from Sarawak. At the outset, learned counsel for the respondents took objection to Mr Thomas representing the appellants. Having heard argument from both sides, we reserved judgment.

2. The main – indeed the only argument – raised by the respondents in support of their objection is this. If these appeals had been posted for hearing in Sarawak, Mr Thomas would have no standing to appear for the appellants by reason of the Advocates Ordinance (Cap 110) of Sarawak (“the Ordinance”). Three sections of the Ordinance were prayed in aid of this argument, namely, sections 8, 10 and 16. This is what they say:

“8.(1) Subject to subsection (2) and to section 9, advocates shall have the exclusive right to practice in Sarawak and to appear and plead in the Federal Court in Sarawak and the High Court, and in all courts in Sarawak subordinate thereto in which advocates may appear, and, as between themselves, shall have the same rights and privileges without differentiation:

Provided that –

(a) the Attorney–General of the Federation and the State Attorney–General shall be entitled to the same rights and privileges as are enjoyed by the Attorney–General in the Courts in England; and

(b) no advocate, other than the State Attorney–General, who has the rank of Queen’s Counsel shall perform any of the functions which, in England, are performed by a solicitor and are not performed by a barrister; but any advocate who has the rank of Queen’s Counsel shall not be precluded by virtue of anything contained in this Ordinance from continuing to engage in partnership with another advocate by reason only that such last mentioned advocate performs any functions as aforesaid.

(2) Notwithstanding subsection (1), a person who is an advocate in Sabah or an advocate and solicitor in the States of Malaya may appear and plead before the Federal Court when sitting in Sarawak ―

(a) when the Federal Court is exercising its original jurisdiction –

(i) if he is representing the Government of the Federation or of any State thereof;

(ii) if he is an advocate in Sabah and representing a person who is normally resident in Sabah;

(iii) [Paragraph (iii) deleted by Reprint Commissioner]

(iv) if he is an advocate and solicitor in the States of Malaya and is representing a person who is normally resident in the States of Malaya; or

(b) when the Federal Court is exercising its appellate jurisdiction, if the cause of action, the subject matter of the appeal, was tried –

(i) in Sabah, the advocate appearing is a Sabah advocate;

(ii) [Paragraph (ii) deleted by Reprint Commissioner]

(iii) in the States of Malaya, the advocate appearing is a States of Malaya advocate and solicitor.

10. Notwithstanding anything in this Ordinance contained –

(a) [Paragraph (a) deleted by F.L.N. 435 of 1965]

(b) any person who possesses any of the qualifications mentioned in subsection (1) of section 4 may, in the discretion of the Chief Justice and upon payment of the prescribed fee, be granted a temporary licence to practise notwithstanding that he does not fulfil any of the conditions mentioned in paragraph

(c) of subsection (2) of section 4 if the Chief Justice is satisfied that such person intends to reside in Sarawak and practise in the place of any advocate whose name is on the roll and who has been practising in Sarawak for a period of not less than twelve months : a temporary licence shall not be granted for any period in excess of six months nor shall the period of its validity be expended beyond six months;

(c) the Chief Justice or in his absence from Sarawak a Judge may in his absolute discretion upon application by or on behalf of any person who possesses any of the qualifications mentioned in subsection (1) of section 4 grant permission to such person to practise in any one case or matter subject to any conditions he may think fit and to the payment of the prescribed fee if –

(i) such person has been instructed by a local advocate; and

(ii) having regard to all the relevant circumstances he is of opinion that it is in the interest of justice so to do.

[Paragraph (b) and (c) substituted for paragraphs (b), (c) and (d) by Ordinance 3 of 1960]

16.(1) Any person, not being entitled to practise in Sarawak under the provisions of this Ordinance, who –

(a) acts as an advocate or agent for suitors, or who as such advocate sues out any writ or process, or commences, carries on, solicits or defends any action, suit or other proceeding in the name of any other person, or in his own name, in any of the courts of Sarawak, or draws or prepares any instrument relating to any proceedings in any of the courts of Sarawak;

(b) wilfully and falsely pretends to be, or takes or uses any name, title, addition or description implying that he is, duly qualified to act as an advocate, or that he is recognised by law as so qualified; or

(c) either directly or indirectly for, or in expectation of, any fee, gain or reward, draws or prepares any instrument relating to immovable or movable property

shall be liable to a fine of one thousand dollars.

(2) Nothing in section 8 or subsection (1) shall prevent any litigant in person, or any person having the right to appear under any rules of court or any other written law for the time being in force, from attending pleading and doing any act with regard to any proceeding in which he is a litigant in person, or in which he has a right to appear.

(3) The provisions of this section shall not apply to –

(a) the Attorney–General of the Federation, any State Attorney–General, State Advocate–General or Legal Adviser of a State, or any person acting under the authority of any of them;

(b) any public officer drawing or preparing instruments in the course of his duty;

(c) any person employed merely to engross any instrument or proceeding;

(d) any person who draws or prepares –

(i) a will or other testamentary instrument;

(ii) an agreement under hand only;

(iii) a letter or power of attorney;

(iv) a transfer of stock containing no trust or limitation thereof;

(e) any person who on behalf of an illiterate –

(i) writes a petition or letter addressed to, or intended to come to the notice of, any public officer or court; or

(ii) completes any document or form prescribed by any written law.”

3. It is clear from a collective reading of the foregoing sections that only a person admitted to practise as an advocate at the High Court of Sarawak may appear before that court and the Federal Court when it sits in Sarawak to hear appeals from that State. Be it noted that there is a glaring omission about the right of audience before this court in appeals arising from decisions of the High Court in Sarawak. Be it also noted that the Ordinance has no extra–territorial effect. That is to say, it does not apply to appeals that are posted for hearing within the States of Malaya.

4. Now, as against the Ordinance, there is section 39 of the Courts of Judicature Act 1964 which is a federal law having effect throughout the Federation. That section says this in reference to the sittings of the Court of Appeal:

“39.(1) The Court shall sit on such dates and at such places as the President may from time to time appoint:

Provided that the President may, when he deems it expedient, direct that any appeal be heard at any time and in any place in Malaysia.

(2) The President may cancel or postpone any sitting of the Court which has been appointed under subsection (1).”

5. We consider the first subsection and its proviso to be relevant to the case at hand. As may be seen, it empowers the President of this court to direct it to convene anywhere within Malaysia and to direct any appeal to be heard anywhere therein. It follows that the President may direct an appeal against the decision of the High Court in Sabah and Sarawak to be heard by this court anywhere in the States of Malaya. This is what has happened in the present instance. In such a case, the right of audience before this court is governed, not by the Ordinance, but by the Legal Profession Act 1976. And it is beyond dispute that Mr Thomas has the right of audience before this court when it sits in Putrajaya.

6. It follows from what we have said thus far that the objection taken cannot succeed. We would accordingly dismiss it. Given the circumstances in which the objection was taken we would make no order as to the costs of the proceedings thus far. Acting in accordance with the direction of the President, we direct the Registrar of this Court to re–fix these appeals on an early date. Counsel shall attend before the Registrar and obtain a suitable hearing date.

Dated this 7th day of November 2008.

Gopal Sri Ram
Judge, Court of Appeal
Malaysia
Putrajaya

CIVIL APPEAL NO: Q – 02 – 724 – 2007

Counsel for the appellant: Tommy Thomas (George Lo, Robyn Choi, James Lo, C. Sivasankar and Ting Cheng Ching with him)
Solicitors for the appellant: Messrs George Lo & Partners)
Counsel for the 1st , 5th , 6th 8th and 9th respondents: Willian Yeo
Solicitors for the 1st , 5th , 6th 8th and 9th respondents: Messrs J M Lim & Co.
Counsel for the 2nd, 3rd, 4th and 7th respondents: Sim Hui Chuang (Lim Lip Sze with him)
Solicitors for the 2nd, 3rd, 4th and 7th respondents: Messrs Reddie & Co.

CIVIL APPEAL NO: Q – 02 – 729 – 2007

Please enter your Password and Confirm Password then click on the Change Password button. You will receive a new password shortly. Use this new password to access the site.

Password:
Confirm Password:

Change Password

Change Password