5 Things About Statements From The Bar

1. Are statements not made under oath

Statements from the Bar are unsworn statements.[1]

This can also be gleaned from the Court of Appeal’s decision in Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 MLJ 281 (“Ng Hee Thong”):

“It is a principle fundamental to our system adversarial litigation that evidence upon a matter must be given on oath. The practice of counsel giving evidence from the Bar, as was done in this case, is to be deprecated.”[2]

2. Can be made by a party’s counsel or by the party himself/herself

Commonly, statements from the Bar are made by a party’s counsel.[3]

In Tetuan Tokoyaki Property Sdn Bhd v Sam Kok Sang @ Tham Sow Seng & Ors [2001] 1 MLJ 585, VT Singham JC made the following observation:

“This court is of the view that a statement of fact which is used or relied as a ground to support to prove or disprove or to oppose an application for summary possession of any other application before the court must necessarily be expressed in the affidavit and not raised by way of a statement from the bar table by counsel for one of the parties or litigants.”[4] (Emphasis ours)

3. Includes statements made in Written and/or Reply Submissions

In Dr Lim Boon Ping v Sun Pharmaceutical Sdn Bhd [2020] MLJU 1645, the High Court remarked that the statement from the Bar was made in the Written Submission:

“The Defendant’s written submission at para 30 in fact appears to be a statement from the Bar and as such to be ignored …”[5]

Similarly, in Dian Kiara Sdn Bhd v GCH Retail (M) Sdn Bhd [2020] 12 MLJ 570, the statement from the Bar was also made in the Written Submission:

“Most importantly, the affidavit affirmed by Jason Chong at para 6 of encl 18 remains unrebutted and unchallenged. It is noted that the plaintiff had ample time to rebut, contradict and challenge the contents of encl 18 which the plaintiff failed to do. It is nonetheless admitted that the plaintiff submitted the issue in passing in their written submission which in my view is insufficient, at best, it is merely a statement from the Bar.”[6]

4. Is not evidence

This is a position consistently taken by the appellate courts in Malaysia.

In Pernas Construction Sdn Bhd v Sykt Rasabina Sdn Bhd [2004] MLJU 759, Mokhtar Sidin JCA held the following:

“Obviously this is merely a statement from the Bar table. This is no evidence.”

Abdul Hamid Mohamad FCJ in Lie Kok Keong v Tang Container & Services Sdn Bhd [2004] 1 MLJ 373 was of the view that:

“…  that is merely a statement from the bar.It is not evidence and should not have been accepted as evidence.”[7]

5. Disapproved of by the courts

Pre-Ng Hee Thong, some courts were willing to accept statements from the Bar on a case by case basis.[8]

However, since Ng Hee Thong was decided, it appears that the courts generally disapprove of the practice.

In Sematan Shrimp Hatchery Company v Aqua Fresh Co [2005] MLJU 404, the High Court was of the view that statements from the Bar are inadmissible:

“It is improper for the Court to accept the explanation of Mr. Ng with regard to the omission in filing the Supplementary Record of Appeal earlier because that statement is a statement from the Bar and it is inadmissible.”

The Court of Appeal in Malayan Banking Bhd (formerly known as ‘ Mayban Finance Bhd’ ) v Boo Hock Soon @ Boo Choo Soon [2013] 2 MLJ 843 could arguably have narrowed the scope of rejection of statements from the Bar to very crucial issues:

“Be that as it may, the defendant guarantor ought not to be allowed to challenge the correctness of the certificate of indebtedness because the defendant guarantor has not alluded to this in any of his affidavits in reply nor was there any averment that there were manifest errors in the said certificate. A submission from the bar on this very crucial issue will not be entertained by this court (Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281; [1995] 1 CLJ 609 (CA); and Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287; [1995] 2 AMR 1174; [1995] 4 CLJ 339 (HC)).”[9] (Emphasis mine)

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6 Things About Interim Preservation Orders

6 Things About Interim Preservation Orders

1. Its purpose is to maintain status quo

In Takako Sakao (f) v Ng Pek Yuen & Anor (No. 3) [2010] 2 MLJ 141, the Federal Court held:

“When viewed in its proper perspective, what s 80 is designed to address is a situation where there is either an application for leave to appeal or an appeal pending before this court the integrity of which is required to be preserved. It would be futile for an appellant or an intended appellant to prosecute his appeal or application for leave before this court if the subject matter of the appeal is dissipated or otherwise disposed of. Power is necessary in an appellate court, in particular the apex court, to preserve and maintain the status quo until the matter is finally disposed of. Section 80 does precisely that. It empowers us to make interim preservation orders to protect the integrity of an appeal or a leave application until it is finally disposed of.”[1]

2. The Court of Appeal and Federal Court are empowered to grant it pursuant to the Courts of Judicature Act 1964

 Sections 44 and 80 of the Courts of Judicature Act 1964 provide the following:

“44. (1) In any proceeding pending before the Court of Appeal any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Court of Appeal.

80. (1) In any proceeding pending before the Federal Court any direction incidental thereto not involving the decision of the proceeding, any interim order to prevent prejudice to the claims of parties pending the hearing of the proceeding, any order for security for costs, and for the dismissal of a proceeding for default in furnishing security so ordered may at any time be made by a Judge of the Federal Court.” (Emphasis mine)

3. The High Court can grant it if the subject matter involves property

 The High Court can also grant IPOs, albeit in more narrow circumstances, namely where the subject matter involves property.

Item 6 of the Schedule to the Courts of Judicature Act 1964 seizes the High Court with the:

“Power to provide for the interim preservation of property the subject matter of any cause or matter by sale or by injunction or the appointment of a receiver or the registration of a caveat or a lis pendens or in any other manner whatsoever.” (Emphasis mine)

 4. It can take the form of injunctions

The Court of Appeal in Silver Concept Sdn Bhd v Brisdale Rasa Development Sdn Bhd (formerly known as Ekspedisi Ria Sdn Bhd) [2002] 4 MLJ 113 opined that:

“[Section 44 of the Courts of Judicature Act 1964] empowers this court to make interim orders to preserve the integrity of an appeal or other proceeding, including the very application under the section itself (see sub-s (2)). Such interim preservation orders may take the form of an injunction or other relief designed — in the words of the section — ‘to prevent prejudice to the claims of parties’.”[2] (Emphasis mine)

In Fawziah Holdings Sdn Bhd v Metramac Corp Sdn Bhd(previously known as Syarikat Teratai KG Sdn Bhd) [2006] 1 MLJ 435, the Court of Appeal ordered an injunction “…  in the form of a post judgment Mareva injunction.”[3]

Meanwhile, in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147, it was in the form of an Erinford injunction.[4]

5. It would not be defective if granted by two (or more) judges of the Court of Appeal/Federal Court

 In Wan Khairani bte Wan Mahmood v Ismail bin Mohamad & Anor [2007] 4 MLJ 409 (“Wan Khairani”), the 1st Respondent argued that the interim preservation order granted by the Court of Appeal was defective as it was granted by two Court of Appeal judges.[5]

Tengku Baharudin JCA (later FCJ), in delivering the majority judgment in Wan Khairani, held:

 “Kemusykilan RP tentang perintah dibuat oleh dua orang hakim dijawab oleh s 38(1) CJA itu sendiri yang dimulakan dengan perkataan-perkataan ‘Subject as hereinafter provided’. Seksyen 44 CJA adalah salah satu peruntukan terkemudian yang dimaksudkan di mana keputusan yang dibuat oleh seorang hakim dianggap sebagai keputusan Mahkamah Rayuan — lihat sub-s (2). Jika perintah sedemikian sah dibuat oleh seorang hakim, maka mana-mana hakim dalam panel Mahkamah Rayuan boleh membuatnya. Ekorannya perintah sedemikian yang dibuat oleh dua orang hakim Mahkamah Rayuan adalah teratur dan sah.”[6] (Emphasis mine)

 6. It cannot be granted if, in effect, it would render the appeal nugatory/academic

 In Taipan Focus Sdn Bhd v Tunku Mudzaffar b Tunku Mustapha [2011] 1 MLJ 441, one of the legal questions posed to the Federal Court was:

“whether as a matter of law the Court of Appeal can make orders under s 44 of the Courts of Judicature Act 1964 which in effect renders the appeal nugatory or academic and/or is made pending the disposal of another suit which is not the subject matter of the appeal.”[7]

The majority (2-1) answered the leave question in the negative.[8]

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State Elections In Light Of The Emergency Ordinances

With the Malacca State Legislative Assembly having been dissolved, snap polls will be held in the state.[1]

A question has arisen whether state elections can be conducted during the period the emergency ordinances remain in force (“the Question”).

The Question is a valid one as the Emergency (Essential Powers) Ordinance 2021 contains provisions relevant to State Legislative Assemblies.[2]

Since the emergency ordinances were not properly revoked,[3] the emergency ordinances have effect for six months after the Proclamation of Emergency ceases to be in force.

Article 150(7) of the Federal Constitution states:

At the expiration of a period of six months beginning with the date on which a Proclamation of Emergency ceases to be in force, any ordinance promulgated in pursuance of the Proclamation and, to the extent that it could not have been validly made but for this Article, any law made while the Proclamation was in force, shall cease to have effect, except as to things done or omitted to be done before the expiration of that period.” (Emphasis mine)

The Proclamation of Emergency only ceased to be in force on 2nd August 2021,[4] hence the emergency ordinances promulgated pursuant to the Proclamation will remain in force until 6th February 2022.

Section 13 of the Emergency (Essential Powers) Ordinance 2021 provides the following:

For so long as the emergency is in force

(a) the provision relating to an election for the election to a State Legislative Assembly in the Eighth Schedule to the Federal Constitution, Constitution of any State and any State Law shall have no effect; and

(b) an election for the election to the State Legislative Assembly shall be held on a date as the Yang di-Pertuan Agong thinks appropriate after consultation with the respective Ruler or the Yang di-Pertua Negeri.” (Emphasis mine)

Section 13 of the Emergency (Essential Powers) Ordinance 2021 is clearly contingent on the emergency still being in force.

Since the emergency ceased to be in force with effect from 2nd August 2021, the answer to the Question should be in the affirmative notwithstanding the fact the Emergency (Essential Powers) Ordinance 2021 continues to have effect.

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Recent Federal Court Decisions on Defamation Law

Malaysian defamation law has received significant judicial deliberation by the apex court over the past few years.

This includes determinations on whether governments, government/public officials, and political parties are able to bring and maintain defamation suits.

Governments

In Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 3 MLJ 300 (“Chong Chieng Jen“), the Federal Court unanimously upheld the Court of Appeal’s decision and held:

“The right of the government including the State Government of Sarawak to sue including to sue for defamation is statutorily provided under s 3 of [the Government Proceedings Act 1956]. Hence, the English common law principle expounded in Derbyshire does not apply.”[1]

After the decision, the Appellant filed for a review of the Federal Court’s decision pursuant to Rule 137 of the Rules of the Federal Court 1995.[2]

The Appellant was, unfortunately, unsuccessful as another panel of the Federal Court unanimously dismissed the Appellant’s application for review.[3]

The legal position, at the present moment, is that governments can initiate and maintain defamation suits.

Government Officials

In Lim Guan Eng v Ruslan bin Kassim [Federal Court Civil Appeal No. 02(f)-61-07/2019(W)] which was heard together with Lim Guan Eng v Dato’ Ibrahim Ali & Anor [Federal Court Civil Appeal No. 02(f)-61-07/2019(W)] (collectively referred to as ” “), the Federal Court had the following leave question for its determination:

“Does the decision of the Federal Court in Chong Chieng Jen v The State Government of Sarawak [2019] 1 CLJ 329 allow a Government Official to sue for defamation in his or her official capacity bearing in mind the decision in Derbyshire County Council v Times Newspaper Ltd & Ors [1993] 1 All ER 1011, not being applicable under Malaysian law?”[4]

In Chong Chieng Jen v The State Government of Sarawak [2019] 1 CLJ 329, the Federal Court unanimously held that:

i. pursuant to Section 3 of the Government Proceedings Act 1956, Government’s could sue including for defamation;[5] and

ii. the principle in & [1993] 1 All ER 1011, that it is contrary to the public interest for organs of government to have a right to sue for defamation, does not apply in Malaysia.[6]

The Appeals were essentially an attempt to clarify whether, in light of Chong Chieng Jen, government officials too have the right to sue for defamation.

Amongst others, the majority of the Federal Court in the Appeals (2-1) were of the view that:

i. the Appellant brought the defamation action personally and not in his official capacity;[7] and

ii. Chong Chieng Jen was irrelevant as it was about the right of the State Government to sue for defamation whereas the Appeals were about an individual’s right, albeit a public official, to sue for defamation.[8]

Notwithstanding the above, the Federal Court allowed the appeal[9] and opined that:

“… a public official must enjoy the same rights as other citizens and be allowed to sue for damages for defamation in any individual capacity whether in relation to personal or official matters. He need not avail himself to the provisions of the Government Proceedings Act 1956. Accordingly, the decision in the case cannot be sustained.”[10] (emphasis mine)

The current position, as per the Appeals, is that government/public officials can bring an action for defamation in their individual capacity in relation to personal or official matters.

Political Parties

The Malaysian Chinese Association, had initiated a defamation suit against Mr. Lim Lip Eng (the Member of Parliament for Kepong) over the latter’s claims that the former had misused Government and public funds allocated for National Type Chinese Schools.[11]

Mr. Lim applied to strike out the defamation suit but was unsuccessful.[12]

On appeal to the Court of Appeal, Mr. Lim was once again unsuccessful.[13]

Mr. Lim then sought leave to appeal to the Federal Court and obtained leave on the legal question whether a political party can maintain a suit for defamation in the light of the decisions in Goldsmith v Bhoyrul (1998) and Rajagopal v Jayalalitha (2006).[14]

Recently, the Federal Court unanimously answered the leave question in the negative[15] and allowed Mr. Lim Lip Eng’s appeal.

The legal position as it stands is that political parties cannot bring an action for defamation.

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Competition Law As A Hindrance to the Bar’s Implementation of Minimum Remuneration?

Disclaimer: The author is not a competition lawyer and merely analysed the issue at hand utilising statutory interpretation, from the perspective of a civil litigator

During the 75th Annual General Meeting of the Malaysian Bar, inter alia, two resolutions in relation to minimum remuneration for pupils were adopted (“The Resolutions”).[1]

Recently, vide Circular No 340/2021, the National Young Lawyers and Pupils Committee (“NYLPC”) provided a progress update on The Resolutions.[2]

In the circular, the NYLPC points out the following:

“There may also be a competition law issue in which the Bar Council is awaiting independent legal opinion on the matter.  It is pending ongoing deliberations internally”[3]

During a Clubhouse talk titled “Bar Council Action Plan: Waras or Wayang?” on 15th September 2021,[4] a Bar Councillor (in his individual capacity) expounded on the competition law issue at play.

The Bar Councillor also provided examples of organisations which were found to have engaged in anti-competitive practices when it had fixed salaries.

Section 4(1) of the Competition Act 2010 (“CA 2010”) is the relevant provision in question.

It provides that, “A horizontal or vertical agreement between enterprises is prohibited insofar as the agreement has the object or effect of significantly preventing, restricting or distorting competition in any market for goods or services.” (emphasis mine)

The elements of Section 4(1) of the CA 2010 can be summarised as follows:

i. there must be an agreement;

ii. the agreement must be between enterprises; and

iii. the agreement must have the object or effect of significantly preventing, restricting or distorting competition in any market for goods or services.

Is there an agreement between “enterprises”?

Section 2 of the CA 2010 defines an “enterprise” as:

“… any entity carrying on commercial activities relating to goods or services, and for the purposes of this Act, a parent and subsidiary company shall be regarded as a single enterprise if, despite their separate legal entity, both form a single economic unit within which the subsidiaries do not enjoy real autonomy in determining the actions of the subsidiaries on the market.” (emphasis mine)

Advocates and Solicitors of the High Court of Malaya could be construed as enterprises for the purposes of CA 2010 since they are entities which carry out “commercial activities relating to … services,” namely the provision of legal services.

The Resolutions, meanwhile, could be construed as a horizontal agreement between Advocates and Solicitors of the High Court of Malaya for the purposes of Section 4(1) of the CA 2010.

If that is the case, then the Resolutions would appear to contravene Section 4(1) of the CA 2010 unless it can be shown that the Resolutions do not “have the object or effect of significantly preventing, restricting or distorting competition in any market for goods or services.”

The Resolutions are for the creation of minimum remuneration to be paid to pupils, the Resolutions would significantly prevent, restrict, or distort the ability of legal firms currently paying below the minimum remuneration to be implemented to compete with other legal firms for pupils.

Is there an alternative perspective/approach?

One possible option to sidestep the application of Section 4(1) of the CA 2010 is to view the entire matter as the Malaysian Bar, a regulatory body, or the Bar Council as the management arm of the Malaysian Bar, imposing a minimum remuneration for pupils on all of its members.

After all, the Malaysian Bar is not an “enterprise” for the purposes of the CA 2010 as it does not “[carry] on commercial activities relating to goods or services.”

The purpose of the Malaysian Bar, amongst others, is “to represent, protect and assist members of the legal profession in Malaysia and to promote in any proper manner the interests of the legal profession in Malaysia.”[5]

If the Malaysian Bar is not in fact an “enterprise,” then an arguable case can be put forth that Section 4(1) of the CA 2010 does not apply and the implementation of minimum remuneration for pupils does not give rise to a competition law issue.

If the implementation of The Resolutions would violate Section 4(1) of the CA 2010 by virtue of The Resolutions being an agreement between legal firms to fix a floor wage, the Malaysian Bar can pass a subsequent resolution to revoke The Resolutions

Notwithstanding the revocation of The Resolutions, the Bar Council presses ahead with the imposition of minimum remuneration for pupils in line with the above mentioned purpose of the Malaysian Bar, and pursuant to Sections 56 and 57 of the Legal Profession Act 1976.

Would the implementation of minimum remuneration be in line with the long title of the CA 2010?

In the long title of the CA 2010, one of the purposes of the CA 2010 is “… protecting the interests of consumers.”

Section 2 of the CA 2010 defines a “consumer” as “any direct or indirect user of goods or services supplied by an enterprise in the course of business …”

In the context of the legal profession, pupils use the services provided by legal firms as a means of obtaining training, obtaining qualification for entry to the Bar, obtaining livelihood, etc.

As such, it could be argued that the interests of the consumers (for the purposes of the CA 2010 and in the context of the legal profession) would include the interests of pupils.

If the implementation of minimum remuneration for pupils would be in line with one of the objectives of the CA 2010, Section 4(1) of the CA 2010 could (and should) be interpreted in a less restrictive manner so as to not render The Resolution nugatory.

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6 Things About Native Customary Land Rights in West Malaysia

1. The relevant laws include the Aboriginal Peoples Act 1954, and Article 89(4) of the Federal Constitution

Other laws occasionally of relevance include Article 5(5)(c) of the Federal Constitution, the Malay Reservations Enactment 1913, the Land Acquisition Act 1960, and the National Forestry Act 1984.

2. The Crown’s right or interest in a piece of land is subject to any native rights over such land

This was held by the Federal Court in Superintendent of Land & Surveys Miri Division & Anor v Madeli bin Salleh (suing as Administrator of the Estate of the Deceased, Salleh bin Kilong) [2008] 2 MLJ 677 (“Madeli bin Salleh”) to be the common law position throughout the Commonwealth:

“With respect, we are of the view that the proposition of law as enunciated in these two cases reflected the common law position with regard to native titles throughout the Commonwealth. And it was held by Brennan�J, Mason CJ and McHugh J, concurring, in Mabo (No 2) that by the common law, the Crown may acquire a radical title or ultimate title to the land but the Crown did not thereby acquire absolute beneficial ownership of the land. The Crown’s right or interest is subject to any native rights over such land.”[1] (emphasis mine)

This legal proposition was followed by the Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527.[2]

3. Common law only recognises the claim of customary lands to areas which form the natives’ settlement and not the area where they used to roam and forage in the jungle

In Superintendent of Lands & Surveys, Bintulu v Nor Anak Nyawai & Ors and another appeal [2006] 1 MLJ 256 (“Nor Anak Nyawai”), the Court of Appeal affirmed the decision of the High Court in Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591 in relation to this legal proposition:

“… we are inclined to agree with the view of the learned trial judge in Sagong bin Tasi & Ors that the claim should not be extended to areas where ‘they used to roam to forage for their livelihood in accordance with their tradition’. Such view is logical as otherwise it may mean that vast areas of land could be under native customary rights simply through assertions by some natives that they and their ancestors had roamed or foraged the areas in search for food.”[3] (emphasis mine)

4. The common feature which forms the basis of claim for native customary rights is the continuous occupation of land

In Nor Anak Nyawai, the Court of Appeal also held as follows:

“From the above two cases [i.e. Kerajaan Negeri Johor & Anor v Adong bin Kuwau & Ors [1998] 2 MLJ 158 and Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors [2002] 2 MLJ 591], we note that the common feature which forms the basis of claim for native customary rights is the continuous occupation of land.”[4]

5. There can be occupation without physical presence on a piece of land provided there exists sufficient measure of control to prevent strangers from interfering

The Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527 held that:

“In the light of the principles enunciated in the abovementioned authorities, we agree with the state appellants that the native customary rights are established by the aborigines’ occupation of the subject land. Whilst actual physical presence on the land is not necessary, there can be occupation without physical presence on the land provided there exists sufficient measure of control to prevent strangers from interfering. In this case, there is no evidence produced by the respondents to show that there exists sufficient let alone any measure of control to prevent strangers from interfering on the land.”[5] (emphasis mine)

6. Native customary land rights of the aboriginal peoples can only be extinguished by clear, unambiguous and plain legislation or by an executive act expressly authorised by such legislation

In Madeli bin Salleh, the Federal Court affirmed the Court of Appeal’s approach :

“The Court of Appeal relying on Sugar Refining Co v Melbourne Harbour Trust Commissioners [1927] AC 343 adopted the rule of statutory interpretation that ‘a statute should not be held to take away rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms.’ In this regard we agree with the Court of Appeal that there is no provision in the 1921 Order seeking to extinguish the respondent’s right over the said land.”[6]

On this legal proposition, the Court of Appeal in Ketua Pengarah Jabatan Hal Ehwal Ehwal Orang Asli & Anor v Mohamad bin Nohing (Batin Kampung Bukit Rok) & Ors and another appeal [2015] 6 MLJ 527 (“Mohamad bin Nohing”) followed Madeli bin Salleh.[7]

Mohamad bin Nohing summarised Madeli bin Salleh’s position as follows:

“Federal Court held that native customary land rights of the aboriginal peoples can only be extinguished by clear, unambiguous and plain legislation or by an executive act expressly authorised by such legislation. To adopt the words of the Federal Court, such a ‘drastic measure’ must be justified in clear and unambiguous terms and not by mere implication.”[8]

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