MESSRS TAI CHOI YU & CO, ADVOCATES (SUING AS A FIRM AND TAI CHOI YU AS SOLE PROPRIETOR) v ARIFIN BIN ZAKARIA & ANOR [2020] 5 MLJ 207

Court of Appeal (Putrajaya)

Locus Standi for Application for Leave for Judicial Review

2.      The Defendant filed an application to strike out the writ and statement of claim under Order 18 Rules 19 of Rules of Court 2012, which the High Court Miri dismissed.

3.     The Defendant then appealed to the Court of Appeal.

4.     On 14 August 2014, the Court of Appeal allowed the appeal and struck out the suit under the panel of judges sitting which were YA Zaharah bt Ibrahim, YA Tengku Maimun bt Tuan Mat and YA Dato’ Hj Mohd Zawawi bin Salleh.

5.     The Appellant sent four letters and reminders to the three judges for the written grounds of judgement.

6.     On 15 March 2016, the Appellant sent a letter to the First Respondent complaining on disciplinary proceedings against YA Zaharah bt Ibrahim and YA Tengku Maimun bt Tuan Mat under paras 12 and 13 of the Judges’ Code of Ethics 2009 (P.U. (B) 201.).

7.     The letter sent by the Appellant was due to their refusal to ‘promptly’ write and supply the grounds of judgement and their failure to act ‘diligently and efficiently’ based on paragraph 7(7) of the (P.U. (B) 201.).

8.     By the letter dated 5 April 2016, the Second Respondent informed the Appellant that there was no basis for the complaint after the Second Respondent had investigated the complaint.

9.     Then, the Appellant filed for leave of judicial review as follows:

(a)      to issue an order of certiorari that the decision of the Second Respondent dated 5 April 2016 on refusal to proceed with the disciplinary proceedings against YA Zaharah bt Ibrahim and YA Tengku Maimun bt Tuan Mat based on (P.U. (B) 201.) of the Federal Constitution. The said order was for breaches of paragraphs 12 and 13 of (P.U. (B) 201.).

(b)     a mandamus order for the First Respondent to determine the nature of the breaches of paragraphs 12, 13, 14, 15 and 16 of (P.U. (B) 201.).

(c)    a declaration of the decision by the Second Respondent dated 5 April 2016 is a nullity, null and void and/or void ab initio and/or unlawful and/or illegal and/or ultra-vires of (P.U. (B) 201.) under the Federal Constitution.

10.  Then, the learned High Court judge refuse to leave for the judicial review at the ex-parte application after hearing the Appellant and a senior federal counsel (SFC) from the Attorney General’s Chambers.

11.  In the present appeal, the Appellant complained against the appearance and attendance of AG or SFC on the ex-parte for leave of the judicial review application.

12.  The Appellant argued that counsel or the AG did not represent the putative Respondents and that the government or AG was not a party in this action.

13.   The Appellant also submitted that the SFC who appeared had admitted that he was not acted for the putative Respondents or as amicus curiae.

14.  Additionally, it was argued that the AG or SFC had no right to appear for the leave of judicial review motion because they were not invited to the hearing and lacked locus standi.

1.     The duty of Attorney General

(a)  The duty of AG to perform such other duties of a legal character and to discharge the functions conferred on him by or under the  Federal Constitution (FC) or any written law is as provided under Article 145(2) of FC as follows:

“Attorney General

(2) It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or an Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.”

(b)  In addition, Article 145(4) of FC provides that in the performance of his duties, the AG shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal in the Federation.

“(4) In the performance of his duties the Attorney General shall have the right of audience in, and shall take precedence over any other person appearing before, any court or tribunal in the Federation.”

(c)  Section 24(1)(a) and section 24(2) of the Government Proceedings Act 159 (Act 359) provide for the appearance of the law officers as follows:

“24. (1) Notwithstanding any written law

(a)  in civil proceedings by or against the Federal Government a law officer, the Parliamentary Draftsman or a Federal Counsel, or, in the case of the States of Sabah and Sarawak, a legally qualified member of the Federal or State Attorney General’s Chambers authorized by the Attorney General for the purpose; and

may appear as advocate on behalf of such Government and may make and do all appearances, acts and applications in respect of such proceedings on behalf of the Government.

(2) Notwithstanding any written law in civil proceedings to which a public officer is a party

(a)  by virtue of his office; or

(b)  in his personal capacity, if the Attorney General certifies in writing that it is in the public interest that such officer should be represented by a legal officer, a legal officer may appear as advocate on behalf of such officer and shall be deemed to be the recognized agent of such officer by whom all appearances, acts and applications in respect of such proceedings may be made or done on behalf of such officer.”

(d)  In Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole-proprietor) v The Court of Appeal of Malaysia & Ors [2017] 6 MLJ 254, the Court of Appeal decided that AG, as an officer provided under FC, must intervene in defence of judges sued while carrying out their duties in order to safeguard the institution of the judiciary and promote the administration of justice.

(e)  In the present case, the Court of Appeal found that AG was neither representing the alleged Respondents nor serving as an amicus curiae in the proceeding. Nevertheless, SFC argued that AGC has broad powers to represent the Government under FC and has the right to appear under Section 24 (1)(a) of Act 359.

(f)    The Appellant countered that the Government was not sued and not a party, so AG and his officers did not have the right to appear under section 24(1)(a) of Act 359. In addition, the Appellant contended that AG did not certify in writing to have the right to appear regarding public case interest, so which means a non-compliance of  Section 24(2) of Act 359.

(g)  As such, the Court of Appeal decided that Section 24 was not applicable to AG.

(h)  Furthermore, AG is a public officer as provided in Article 145 of FC which granted the right and capacity for AGC in representing the Government or any other body in performing any of the functions as provided in the FC.

(i)     Therefore, it means that AG had a separate and independent power and duty under the FC for defending and protecting the judiciary and the administration of justice in the country especially in the circumstances whereby the judiciary is under attack.

2.     Leave of judicial review application

(a)   In a judicial review leave application, Order 53 of the Rules of Court 2012 (ROC) provides that the application must be served on the AG.

“Leave (O. 53, r. 3)

(1)   An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule.

(2)   An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.

(3)   the applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General’s Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits.

(b)  In Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] 4 MLJ 656, the Court held in the public interest that the AG’s job is to protect public authorities or institutions by discouraging or getting rid of clearly false claims without making them a party to lawsuits, and to prevent them public administrative actions from being paralysed.

(c)  In the present appeal, the Court decided that judicial review is one of the most important “public law” tools that could be used by “public” bodies.   As public bodies tend to be of interest to the public, and the AG’s job is to protect the public interest, the AG is a nominal party in all judicial review applications. The goal of the rule is to make sure that the AG looked over all requests for judicial review to see whether AG should be involved or not. The AG could choose to show up or not, and if AG chooses to appear, the court is bound to give a hearing.

(d)  In the case of Five Heritage Sdn Bhd & Ors v Peguam Negara Malaysia & Ors [2019] 1 MLJ 317,  the Court held that the applicant must satisfy the threshold for leave to be granted in a judicial review leave application. Therefore, the High Court, in exercising its power to grant such leaves, the Court must determine whether the application was frivolous, vexatious and has any merit for further arguments on the substantive motion.

(e)  In the case of Five Heritage Sdn Bhd & Ors v Peguam Negara Malaysia & Ors [2019] 1 MLJ 317, the Court dismissed the suit by the Appellant who previously sued the Court of Appeal and the two judges complained of.  Also, the appeals were also dismissed. In fact, the Court in Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole proprietor) v The Court of Appeal of Malaysia & Ors  [2017] 6 MLJ 254 held that the Appellant did not have any basis to sue or join the Respondents in the judicial review application because the Appellant did not submit there was a conflict of interest which resulted to any bias.

(f)    In conclusion, the Court of Appeal decided that SFC on behalf of AG has the right to appear and be heard during the judicial review application. Thus, the learned judge has decided judiciously by not granting leave for the judicial review for the Applicant.

2.   This is simply because the duty of AG to appear is established within the FC, therefore the AG must exercise and perform duties within his best capacity and interest of administration of justice.