5 Things About Holding Watching Briefs

1. Meant to only watch the proceedings

Datuk Mahadev Shankar JCA remarked the following in his article titled Watching Briefs — Indulgence, Right or Potential Estoppel? [1991] 1 MLJ clxi:

“In a trial whether criminal or civil, the only persons directly concerned with the process are the combatants. Only they have the right to tender evidence and make submissions. They alone will be bound by the orders of the judge and become liable for the costs of litigation.

In such a scenario a watching brief has no right whatsoever to do anything except watch the proceedings. He cannot be permitted to lead evidence nor can he question any of the witnesses. Nor can he address the judge on the merits of the case. All this for the simple reason that his client is not a party to the dispute, even if he has an interest in the outcome.” (Emphasis mine)

The above extract was quoted approvingly by Colin Sequerah J in Foo Tseh Wan v Toyota Tsusho (M) Sdn Bhd & Anor [2018] 9 MLJ 664.[1]

2. Need to obtain Court’s permission to address the Court

The High Court in MBf Capital Bhd & Anor v Tommy Thomas & Anor and other suits [1999] 1 MLJ 139 was of the view that:

“… there is a great difference between holding a watching brief and having a locus standi. In respect of the former, a party applying is invariably not a party to the suit and counsel given such leave to sit in the proceedings will have no say at all, save and except at the invitation of the court.”[2] (Emphasis mine)

In Public Prosecutor v Seeralan [1985] 2 MLJ 30, the Supreme Court held:

“… although addressing the court without permission is not a contempt it is certainly not polite to do so without permission. In polite circles such as the legal profession, this simple etiquette is expected.”[3]

In Mangaleswary a/p Ponnampalam v Giritharan a/l E Rajaratnam [2015] 5 MLJ 305, counsels holding watching brief requested for permission to address the Court.[4]

3. Can submit on the issues which arise in the case if granted permission by the Court

In Lina Joy lwn Majlis Agama Islam Wilayah Persekutuan dan lain-lain [2007] 4 MLJ 585, the counsels holding watching brief submitted on the issues which arose in the case.[5]

This was also the case in DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v DKIM Holdings Sdn Bhd & Anor [2003] 2 MLJ 1.[6]

4. Can cross-examine witnesses during trial if granted permission by the Court

In Public Prosecutor v Seeralan [1985] 2 MLJ 30, the trial judge allowed the counsel holding watching brief to cross-examine witnesses during the trial of the matter:

“We agree with Mr. Param Cumaraswamy that merely to address the court without getting its permission did not constitute a contempt, especially when the respondent in this case had the court’s indulgence to cross-examine practically every witness. The records show that he had cross-examined the first five witnesses, and refrained from so doing only as regards witnesses Nos. 6 and 7.”[7] (Emphasis mine)

5. Cannot file applications in the proceedings

In Foo Tseh Wan v Toyota Tsusho (M) Sdn Bhd & Anor [2018] 9 MLJ 664 (“Foo Tseh Wan”), the learned High Court judge was of the following view:

“… it was patently wrong for the SCJ to have entertained the first respondent’s application let alone to have allowed such application. The issue very simply is one of locus standi which a party holding a watching brief does not possess.”[8] (Emphasis mine)

It remains to be seen whether:

(a) the appellate courts are of the same view as the High Court in Foo Tseh Wan; and

(b) a party holding watching brief could be “clothed” with locus standi to file an application in the proceedings, if granted permission by the Court to do so.