DALAM MAHKAMAH PERSEKUTUAN MALAYSIA
(BIDANGKUASA RAYUAN)
RAYUAN SIVIL No: 02-19-2003 (W)
ANTARA
DAN
DATO’ KANAGALINGAM … RESPONDEN
A/L VELUPPILLAI
[DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
(BAHAGIAN RAYUAN DAN
KUASA-KUASA KHAS)
RAYUAN SIVIL NO. R-17B-157 TAHUN 2002
ANTARA
DATO’ KANAGALINGAM … PERAYU
DAN
MALAYSIAN BAR … RESPONDEN]
Coram:
P.S. Gill, F.C.J.
Rahmah
Hussain, F.C.J.
Hashim
Yusoff, J.C.A.
(Heard
in Putrajaya on 19/7/2004)
JUDGMENT OF THE COURT
This is an appeal
by the Malaysian Bar against the decision of the High Court consisting of 3
Judges given on 17.11.2003 which had allowed the Respondent’s appeal with costs
against the decision of the Disciplinary Board (DB). After hearing the submission by the respective counsel for the
Appellant and the Respondent, we reserved our judgment to be given at a later
date. We now give our judgment.
At the outset of this
appeal, the Appellant had filed a Notice of Motion to amend the Memorandum of Appeal to include two
additional grounds of appeal with costs of the application to be costs in the
cause of the appeal. This motion was
not objected to by the Respondent. We
therefore allowed the said application accordingly.
Background :
The Appellant had
lodged two complaints against the Respondent with the Disciplinary Board (DB)
vide its letter dated 6.8.2002 (refer page 118-119 of Appeal Record
Vol. I). The DB on 21.11.2002 vide its
letter had “determined that there was merit in the said complaint and decided
to constitute an Investigating Tribunal (IT) to enquire into the said
complaint”. The said DB letter was
communicated to the Respondent on 25.11.2002.
The Respondent then filed an appeal to the High Court against the said
decision of the DB pursuant to s.103E of the Legal Profession Act 1976 (“the
LPA”). The High Court consisting of 3
Judges allowed the Respondent’s appeal with costs on 17.11.2003. Now the Appellant is appealing against the
said decision of the High Court.
The submission of
learned counsel for the Appellant can
be summarised as follows :-
1)
that the Court has no jurisdiction to entertain an appeal from the
decision of the DB to appoint an Investigating Tribunal, to investigate and
report as such decision is not a final, but merely a preliminary decision;
2)
that the Respondent’s alleged breaches of natural justice and bias by
the DB are unfounded since no records regarding the same, nor any evidence
either by Affidavit or viva voce had been produced before the Court.
Issue regarding jurisdiction:
To support his
argument, the Appellant’s counsel had among others, referred to two Federal
Court cases viz :-
1. DYTM Tengku Idris Shah Ibni
Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn Bhd. & Anor (2002) 2 CLJ 57
2. Palm Oil Research
& Development Board Malaysia & Anor v. Premium Vegetable
Oils Sdn. Bhd. (2004) 2 CLJ 265
whereby inter alia,
it was held that it was clear beyond doubt that s.17A of the Interpretation Acts
1948 and 1967 is a statutory recognition for the Courts to take a purposive
approach in the interpretation of statutes including taxing statutes.
The instant appeal centres primarily around the
wordings of s.103E of the Legal Profession Act which provides as follows :-
“Any party aggrieved by any decision or order
made by a Disciplinary Board shall have the right to appeal to the High Court
within one month of notification of the decision or order complained against.”
Learned counsel for
the Appellant submitted that a purposive approach to s.103E should be given as
provided by s.17A of the Interpretation Acts, 1948 and 1967, which reads :-
“In the
interpretation of a provision of an Act, a construction that would promote the
purpose or object underlying the Act (whether that purpose is expressly stated
in the Act or not) shall be preferred to a construction that would not promote
that purpose or object.”
Learned
counsel for the Respondent in response submitted that a literal interpretation of the said section should be given
since the wordings of the said section are very clear.
In the case of DYTM
Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn
Bhd & Anor, supra it was held inter alia that “In order to resolve
the ambiguity caused by the interpretation, it was necessary to consider the
purpose or object of establishing the Special Courts …… “.
We also noted that
in the Palm Oil Research case, supra, the Federal Court had recognised
that there was an ambiguity in determining the distinction between the seed and
the kernel of the oil palm. In order to
resolve such ambiguity, the Court adopted the purposive approach in the interpretation of statutes as provided
by s.17A of the Interpretation Act.
In the case of Wong
Pot Heng v. Zainal Abidin Putih (1990) 1 MLJ 410, his Lordship Mohamed
Azmi S.C.J. in delivering the judgment of the Supreme Court at p. 414 said,
“The purposive
construction of statutes was first adopted by the House of Lords in the Fothergill v. Monarch Airlines. It is a well established principle that the purposive approach to the
interpretation of legislation only applies where any doubt arises from the
terms or words employed by the legislature.
But where the words are precise and unambiguous, then the literal and
strict construction rule should apply.”.
And further, his
Lordship said,
“we cannot read or imply into the laws a
provision that depositors must be given priority over other creditors. Indeed,
the speech of Lord Goddard CJ in R v
Wimbledon Justices, ex p Derwent at p 384, relied on by counsel that the
court ‘cannot add words to a statute or read words into it which are not
there’, and the statement of Rowlatt J in Cape
Brandy Syndicate v Inland Revenue Commissioners at p 71 that ‘nothing is to
be read, nothing is to be implied; one can only look fairly at the language
used’, lend support to what we have adverted to earlier, that where the words
used by the legislature are clear, the purposive approach to interpretation of
legislation must not be adopted. The
court must stick to the plain meaning of the words used.”.
Reading the
wordings of s.103E of the Legal
Profession Act we are of the view that there is no ambiguity therein,
since the wordings used are “Any party aggrieved by any decision
or order made by the Disciplinary Board shall have the right to appeal
to the High Court ……..” . We are in entire
agreement with the sentiments expressed in the case of Duport Steels Ltd. And Others v.
Sirs And Others (1980) 1 WLR 142 referred to by the learned judge in
his grounds of judgment wherein Lord Diplock at p. 157 held :-
“Where the meaning
of the statutory words is plain and unambiguous it is not for the judges to
invent fancied ambiguities as an excuse for
failing to give effect to the plain meaning because they themselves
consider that the consequences of doing so would be inexpedient or even unjust or
immoral ……… “.
Issue regarding breach of natural justice and bias :
As regards the
issue of breach of natural justice and bias, the High Court had considered the
non disclosure by the DB at the request of the Respondent, of minutes of its
meeting and its refusal to reveal the names of the members of the DB who had
sat and determined that there was merit in the complaint against the Respondent and held that s.114(g) of the
Evidence Act was applicable against the DB.
S.93(3) of the Legal
Profession Act provides that the DB shall consist of the following :-
(a) the Chairman of the DB
appointed by the Chief Justice;
(b) the President of the Bar
Committee with the Vice President as his alternate; and
(c) 15 practitioner members of
not less than 15 years standing appointed by the Chief Justice.
However, under Rule
4(1) of the Legal Profession (DB) (Procedure) Rules 1994, the President of the
Bar Council or his alternate is disqualified to be a member of the DB for the
purposes of the quorum where the Bar Council is the complainant.
It is not disputed
that the Bar Council is the complainant in this case. The President of the Bar Council himself had signed the letter of
complaint as evident in the letter at page 118 of the Appeal Record Vol. I.
When the Respondent
requested from the DB for the names of the members of the DB who sat and
decided to institute the Investigating Tribunal, the DB refused to entertain
his request by saying that it was not in a position to disclose the same. Surely such a reply would arouse strong
suspicion as to why the DB refused to disclose the names as requested by the
Respondent. Yet in the case of Ngeow
Yin Ngee v. Majlis Peguam Malaysia (2004) 5 CLJ 467 at the request of
the Appellant the DB had in fact furnished the Appellant (lawyer) with the
names of the DB members who sat in the DB meeting after the DB had made the
order against the Appellant. Why then
could the DB have not provided the same in the instant appeal when requested by
the Respondent? Therefore we think the
High Court was not in error when it invoked s.114(g) of the Evidence Act
against the Appellant under the circumstances, thus raising the presumption
that the President of the Bar Council or his alternate was present at the said
meeting.
For the above reasons,
we agree with the learned counsel for the Respondent that the said decision of
the Disciplinary Board was therefore appealable to the High Court under s.103E
of the Legal Profession Act. As such we
find no reason to interfere with the findings of the Court below. Accordingly, this appeal is dismissed with
costs to the Respondent. Deposit to the
Respondent towards account of taxed costs.
My learned brother P.S. Gill, F.C.J. and learned sister Rahmah Hussain F.C.J.
have read this judgment in draft and have expressed their concurrence
respectively.
Dated this 24th August 2004.
( DATO’ HAJI HASHIM
BIN DATO’ HAJI YUSOFF )
JUDGE, COURT OF
APPEAL, MALAYSIA
SITTING AT THE FEDERAL
COURT
Counsel for the Appellant : Dato’ Bastian Vendargon
with
T. Gunaseelan & Ms Asha Anandan
Solicitors: Tetuan Vendargon &
Partners
A-5,
Tingkat 2, Lorong Tun Ismail 10,
Sri
Dagangan II,
25000
Kuantan
Counsel for the Respondent : Dato’ V.
Sivaparanjothi
with
K. T. Wong & V.K. Lashmi
Solicitors: Tetuan Siva &
Partners
Kamar
307, Tingkat 3, Banhgunan Loke Yew,
No.
4 Jalan Mahkamah Persekutuan,
50050
Kuala Lumpur
Cases referred to
1. DYTM
Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn
Bhd. & Anor (2002) 2 CLJ 57
2. Palm
Oil Research & Development Board Malaysia & Anor v. Premium Vegetable Oils Sdn. Bhd. (2004) 2 CLJ 265
3. Ngeow Yin Ngee v. Majlis Peguam
Malaysia (2004) 5 CLJ 467
4. Wong Pot Heng v. Zainal Abidin Putih
(1990) 1 MLJ 410
Legislations referred
to
Legal Profession Act 1976 s.103E, s.93(3)
Interpretation Acts 1948 and 1967 s.17A
Legal Profession (Disciplinary Board)
(Procedures) Rules 1994, r.4(1)
Evidence Act
1950 s.114(g)
\MPRS 02-19-2003(W)J\ 24-8-04