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

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

Court of Appeal (Putrajaya)

The Jurisdiction of Court of Appeal

Facts

1.    This was an appeal by the Appellant against the decision of the High Court of Sabah and Sarawak at Miri made on 24 February 2016.

2.    The learned High Court judge had dismissed the Appellant’s application to strike out the memorandum of appearance filed by the Senior Federal Counsel (‘SFC’) of the Federal Attorney General’s Chambers on behalf of all the Respondents.

3.    The striking out application was made under Order 18 rule 19 of the Rules of Court 2012 and its inherent jurisdiction. The memorandum of appearance was filed by the learned SFC in relation to a civil action by the Appellant herein Tai Choi Yu as Plaintiff, against all the three Respondents.

4.    In this case, the Appellant is a firm of solicitors while the First Respondent is the Court of Appeal established under the Federal Constitution and the laws of Malaysia.

5.    The Second Respondent was the Chairman of the Court of Appeal panel convened and presiding on 14 August 2014 and the Third Respondent was another member of the three presiding judges in that Court of Appeal panel hearing the Civil Appeal No Q-02(IM)-188-01 of 2014 (‘the 2014 appeal’).

6.    The 2014 appeal was in pursuance to a civil action filed by the Appellant as Plaintiff in Miri High Court Suit No MYY-22-15/7 of 2013 (‘the 2013 action’) between Tai Choi Yu & Co Advocates against Ting Sie Chung @ Ting Sieh Chung.

7.    The said 2013 action was filed by the Appellant seeking for a sum of RM995,517.49 being remuneration for legal work and services rendered. The Defendant in the 2013 action filed a notice of application under Order 18 rule 19 of the Rules of Court 2012 to strike out the 2013 action.

8.    However, the learned High Court judge dismissed the striking out application. The Defendant in the 2013 action then appealed to the Court of Appeal in the 2014 appeal. On 14 August 2014, the Court of Appeal (‘the First Respondent’) overturned the decision of the High Court and struck out the 2013 action.

9.    The Appellant however maintained that the Court of Appeal should have ordered for the 2013 action to be reinstated and remitted back to the High Court for a hearing on its merits.

10.  The basis of the Appellant’s complaint was that the Respondents had not provided him with written grounds of decision in deciding the 2014 appeal.

11.  The Appellant said he wrote several letters dated 9 June 2015, 25 June 2015 and 23 July 2015 respectively requesting for the written grounds of decision.  However, there was no reply.

12.  Despite no grounds of judgment being made available to him, the Appellant being dissatisfied with the First Respondent’s order dated 14 August 2014 proceeded to apply for leave in order to lodge an appeal against that decision at the Federal Court.

13.  The leave application was dismissed on 21 May 2015. It was the Appellant’s contention that his failure in obtaining leave was contributed by the fact that there were no written grounds of decision from the First Respondent to support the Appellant’s application for leave.

Issue

1.    Whether the Court of Appeal has the jurisdiction to hear the instant appeal.

2.    Whether the Respondents can be represented by the federal counsel of the Federal Attorney General’s Chambers.

Ratios

1.  Whether the Court of Appeal has the jurisdiction to hear the instant appeal.

(a)   The Appellant, before submitting on the merits of the appeal, raised a preliminary issue before the court that the Court, sitting on the panel of the Court of Appeal has no jurisdiction to sit and to hear the appeal.

(b)   The Appellant contended that the hearing of such appeal by the Court would tantamount to hearing an appeal against the Court and thereby in breach of the established elementary rule of natural justice, nemo judex in causa sua, since the Court of Appeal is sued and named as a party.

(c)   Nevertheless, according to the Court, it was the Appellant himself who lodged the appeal to this court, and it is the Court’s constitutional duty to hear and decide on the appeal before the Court.

(d)   The learned SFC in response to this preliminary issue had also pointed out that it was the Appellant who lodged the present appeal before the Court and in doing so had submitted himself to the jurisdiction of this court.

(e)   Therefore, he could not any longer raise issue questioning the jurisdiction of the Court of Appeal. The Court agreed with the learned SFC and thus dismissed the preliminary issue raised and proceeded to hear the Appellant’s appeal on its merits.

2.    Whether the Respondents can be represented by the federal counsel of the Federal Attorney General’s Chambers.

(a)   The Appellant submitted that the representation by SFC would lead to a situation of conflict of interest and would undermine the independence of the judiciary if not real, at least on account of public perception.

(b)   Furthermore, according to the Appellant, the subject matter of the suit against the Second Respondent and the Third Respondent is made in their respective personal names and not to be taken as a suit against the government a fortiori the Attorney General has no locus to represent the Respondents herein.

(c)   Having perused through the statement of claim, the Court found it amplied clearly that the civil action is an action by the Appellant made against the Respondents and it pertains to the Respondents’ discharge of their duties and functions as the Court of Appeal, where the Second Respondent and Third Respondent sat as the adjudicating members.

(d)   The fact that the Second Respondent and the Third Respondent are named in their personal names does not ipso facto make it a personal action against them.

(e)   On the date in question, the Court of Appeal presided over the 2014 appeal in the course of its constitutional duties and functions, where the Second Respondent and the Third Respondent were sitting as the panel members together with another panel member.

(f)     The Court found it is difficult to appreciate the stand taken by the Appellant that the Second Respondent and the Third Respondent were not sued in their official capacities but in their personal names.

(g)   It was not made clear by the Appellant though, whether the Appellant intended to mean that the suit is a private and personal suit against the two Respondents instead.

(h)   And if so, how can a suit be treated as a personal suit bearing in mind that the allegation against the Respondents were all matters that relate to, or in the course of them discharging their constitutional duties.

(i)     This is further borne out by the pleadings of the Appellant which described the First Respondent as the Court of Appeal and the other two Respondents were the presiding judges who made the impugned order.

(j)     The First Respondent, the Court of Appeal is constituted under Article 121(1A) of the Federal Constitution. The jurisdiction of the Court of Appeal as provided in the Courts of Judicature Act 1964 (Act 91) amongst others, is to determine appeals from decisions of the High Court and such other jurisdiction conferred under federal laws. It is in that capacity too that the First Respondent is being sued.

(k)    Having established that position, the Court moved on to examine the Attorney General’s constitutional functions and duties.

(l)     Article 145 of the Federal Constitution defines the Attorney General’s constitutional duties in broad general terms.

(m) In Tun Dato Haji Mohamed Salleh bin Abas v Tan Sri Dato Abdul Hamid bin Omar & Ors [1988] 3 MLJ 149, the Supreme Court held that Article 145 of the Federal Constitution gives the Attorney General broad authority to represent the government and anybody or person performing any function under the Constitution.

(n)   The same court had previously considered the Attorney General’s ability to represent a judge who is sued while administering and discharging his judicial function in Indah Desa Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen, Judge, High Court Malaya & Anor [2008] 2 MLJ 11.

(o)   In that case, a legal suit was filed against a High Court judge. An application to prevent the Attorney General or his officers from acting on behalf of the judge was denied.

(p)   Because the judge was sued as a High Court judge and not in a personal or private capacity, the Attorney General was held to be duty bound and under a mandatory duty to provide legal representation in order to defend and protect the office and the institution for the administration of justice in this country.

(q)   In that case, the Court of Appeal added that, in the absence of any factual or legal impediment, the Attorney General and his officer are legally bound to represent a judge in a legal proceeding.

(r)     The Court agreed with the decision of the same Court of Appeal in Indah Desa Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen, Judge, High Court Malaya & Anor that the Attorney General, as an officer established by the Federal Constitution, must defend judges sued in the course of performing their duties, as in this case, in order to protect the institution of the judiciary and to administer justice.

(s)    The Court also decided to give consideration to the submission of the Appellant in pressing the issue that Section 24 of the Government Proceedings Act 1956 (Act 359) cannot be relied upon to justify the representation of the Respondents by the Attorney General.

(t)    This is because, the suit in the current case was not a suit against the government. It is also not a proceeding that entitled the Attorney General to act under Section 24(2) of Act 359 because the Respondents are not public officers and no certification in writing was shown by the Attorney General that it is a public interest litigation pursuant to Section 24(2) of Act 359.

(u)   Therefore, the Court is in agreement with the Appellant that Section 24 of Act 359 would not applicable.

(v)   The suggestion made by the Appellant that Section 24(2) of Act 359 can only be invoked upon certification in writing by the Attorney General too is of no application because by the Appellant’s own argument the suit filed by him is not even one against a public officer to begin with.

(w)  As the Court have alluded to earlier, the representation by the Attorney General here is pursuant to his wide powers under Article 145 of the Federal Constitution.

(x)    In short, the Attorney General is representing the Respondents under his wide-ranging powers embedded in Article 145 to uphold the sanctity of the institution of justice.

(y)   Thus, the decision of the Supreme Court in Tun Dato Haji Mohamed Salleh bin Abas v Tan Sri Dato Abdul Hamid bin Omar & Ors remains a good law which binds the Court.

Decision

1.    The Court of Appeal dismissed the Appellant’s appeal with costs of RM5,000 with deposit refunded to the Appellant.

Key Take Away

1.    The position and role of the Attorney General are enshrined in the Malaysia’s Federal Constitution by virtue of Article 145.

2.    According to Article 145(3) of the Federal Constitution, the Attorney General shall have the authority, exercisable at his discretion, to institute, conduct, or discontinue any proceedings for any offence, except those before a Syariah court, a native court, or a court-martial.

3.    Finally, in the performance of his duties, the Attorney General shall have the right of audience in any court or tribunal in the Federation and shall have precedence over any other person appearing before it.

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