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)


On Appealing Against Interlocutory Decisions

During the opening of the 2020 legal year, the Chief Justice of Malaysia, Tengku Maimun Tuan Mat, announced that the Judiciary was looking to substantially limit civil appeals in interlocutory cases:

“28. … Trivial appeals tend to have a “snowball” effect on the efficient disposal of trials as they clog up the system. For example, many cases in the High Court are aging because a single case has so many interlocutory appeals pending at the Court of Appeal and the Federal Court. This is a common feature throughout the country.

29. Applications for summary judgment and striking out are one such example. If the application is dismissed there appears to be no prejudice to the applicant as the case will proceed on the merits. The proposal to limit appeals in this respect is to avoid delays in the full trial of the action. Although at the discussion stage, there was significant resistance from both the Bar and Chambers to the introduction of this new mechanism, the proposal has already been approved at the Rules Committee stage and it only remains to be formalised.”[1] (emphasis mine)

The learned Chief Justice’s proposal is consistent with the Federal Court’s past decisions that the definition of ‘decision’ found in Section 3 of the Courts of Judicature Act 1964 (“CJA 1964“) has to be read together with the relevant provision in the CJA 1964 on appeals to the Court of Appeal.

In summary, the legal position as it stands is that a ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties is not appealable.

In Dato’ Seri Anwar Ibrahim v Public Prosecutor [2010] 6 MLJ 585 (“Anwar Ibrahim”), the Appellant had sought to appeal against a ruling made by the trial judge in the course of a criminal trial.[2]

The trial judge had dismissed the Appellant’s application for the statement of the complainant, recorded under s 112 of the Criminal Procedure Code, to be produced for examination by the Appellant.[3]

A 3-man panel of the Federal Court dismissed the appeal on the basis that:

“The underlying reason behind the amendment to the definition of ‘decision’ in s 3 of the CJA, introduced by Amendment Act A1031 of 1998, which came into effect on 31 July 1998 is to stop parties from stalling a trial before the trial court by filing appeal after appeal on rulings made by the trial court in the course of a trial.”[4]

Shortly after that, the Federal Court in Karpal Singh a/l Ram Singh v Public Prosecutor [2012] 5 MLJ 293; [2012] 5 CLJ 537 (“Karpal Singh”) took the same position and held the following:

“A scrutiny of the scope of the term ‘decision’ in s 3 of the CJA reveals that its definition does not extend to the types of ‘judgments or orders’ which can be termed as ‘interlocutory’. In other words, if a judgment or order is not final, in the sense that it does not finally dispose of the rights of the parties in the trial, then it would not fall within the definition of the word ‘decision’ under section 3 of the CJA and thus not appealable …”[5] (emphasis mine)

The Federal Court went on to hold that a party dissatisfied with a ruling made in relation to an interlocutory application is not deprived of his/her right to appeal as he/she could appeal against the ruling after the trial.[6]

In Ahmad Zubair @ Ahmad Zubir bin Hj Murshid v Public Prosecutor [2014] 6 MLJ 831 (“Ahmad Zubair”), the Appellant’s appeal was unanimously struck out by the Federal Court. In delivering the decision of the court, Raus Sharif PCA held:

“From the above explanation given by this court in the case of Dato’ Seri Anwar Ibrahim v Public Prosecutor it is obvious that parliament is not oblivious to appeals which tend to stall proceedings and delay speedy disposal of cases. The new definition of the word decision in the amended s 3 of the CJA which we have laid emphasis to in the preceding paragraph does not include a judgment, order or ruling which does not finally dispose of the rights of the parties on the matters in dispute. With the amended s 3 of the CJA, appeals filed based on technical rulings which are interlocutory in nature are now things of the past. Such appeals are incompetent to be laid before the appellate court as it is clearly precluded by law.”[7] (emphasis mine)

Granted, Anwar Ibrahim, Karpal Singh, and Ahmad Zubair are criminal cases.[8]

In the context of civil cases, the Federal Court in Kempadang Bersatu Sdn Bhd v Perkayuan OKS No 2 Sdn Bhd [2019] 4 MLJ 614 (“Kempadang”) iterated that “Subsection 67(1) of the CJA must be read together with s 3 of the CJA.”[9]

Additionally, and more pertinently, the Federal Court observed that:

“… at what juncture a ruling is issued plays a vital role in determining whether such an order is a ruling within the context of s 3. There must be a trial in existence or a hearing and that the order is issued in the course of that trial or hearing. Secondly, the ruling must not have the effect of disposing the final rights of the parties.”[10]

If both elements are present then such a ruling would not be appealable.

In applying the two elements, a judge’s decision to dismiss a striking out application:

i. would have been made in the course of a hearing – namely the hearing of the striking out application; and

ii. does not have the effect of disposing the final rights of the parties – the matter would proceed to trial, where the Defendant(s) would still have an opportunity to oppose the Plaintiff’s/Plaintiffs’ case.

Thus, such a decision should not be appealable.

Zainun Ali FCJ, however, cautioned that not all orders given by the court pursuant to interlocutory applications filed by parties in the course of trial are non-appealable.[11]

Her Ladyship referred to the Court of Appeal’s decision in Mulpha International Bhd & Ors v Mula Holdings Sdn Bhd & Ors and other appeals [2017] MLJU 445 (“Mulpha International”) whereby it was held that the decision of the trial judge dismissing an application to strike out pleadings was not a ruling within the context of s 3 of the CJA although such application was filed in the course of the trial.[12]

The Court of Appeal in Mulpha International narrowly defined ‘ruling’ to mean any ruling made in the course of a trial upon objection raised by any party to the proceedings.[13]

In Asia Pacific Higher Learning Sdn Bhd v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1 (“Asia Pacific Higher Learning”), the Federal Court agreed with the Federal Court in Kempadang that the word ‘decision’ in Section 3 of the CJA 1964 should be read together with Section 67(1) of the CJA 1964.[14]

The Federal Court also held that:

“The correct approach … is to read s 68 with the definition of ‘decision’ in s 3 of the Act in stating the matters that are not appealable to the Court of Appeal in civil cases. When these words are read with s 67 of the Act, such a ‘decision’, ‘judgment’ or ‘order’ which falls within the exclusionary words in the definition of the word ‘decision’ is without any doubt not appealable to the Court of Appeal.”[15]

Unfortunately, it was not discussed in Asia Pacific Higher Learning whether Mulpha International’s narrow definition of ‘ruling’ (which appeared to be cited approvingly in Kempadang) was correct.

If Mulpha International’s narrow definition of ‘ruling’ is correct, it would mean that decisions to dismiss pre-trial interlocutory applications would not amount to a ‘ruling’ and would thus be appealable regardless of whether it finally disposes of the rights of parties.