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2022 MarsdenLR 1719
HIGH COURT MALAYA KUALA LUMPUR
JONATHAN LAIDLAW QC (APPLICANT)
[Originating Motion No: WA-17D-18-05/2022]
The court ruled that foreign legal practitioners must demonstrate special qualifications not available locally to be admitted, emphasizing local expertise sufficiency.
Headnote:(A) Legal Profession Act 1976 – Section 18(1) – Admission of foreign legal practitioners on special grounds – Applicant sought admission to argue complex appeal involving corruption charges – Court assessed requirements for admission under Section 18, emphasizing necessity for special qualifications not available among local advocates – Court found local lawyers capable of handling the case, dismissing the application for admission. (Paras 1-96)
(B) The applicant failed to demonstrate that his qualifications and experience were superior to those of Malaysian solicitors, as numerous reported cases involve local counsels handling similar issues effectively. (Paras 95-98)
Facts of the case: Applicant sought to be admitted to practice as an advocate for a well-known appeal involving serious legal issues pertaining to corruption and other criminal laws within the Malaysian jurisdiction.
Findings of Court: The applicant did not possess special qualifications or experience beyond that available among local advocates, and the law's purpose was to prioritize local expertise in legal matters.
Issues: Whether the applicant has special qualifications or experience of a nature not available among advocates in Malaysia for the pending appeal.
Ratio Decidendi: The court emphasized the importance of local expertise in handling complex legal matters, finding no justification for the admission of the applicant under Section 18(1). The existing local legal community is competent to address the issues raised in the appeal.
Result: Application for admission dismissed.
JUDGMENT
Introduction
[1] This is an application of Jonathan Laidlaw QC (Passport No: 560682382) (the Applicant) to admit him to practise as an advocate and solicitor of the High Court of Malaya. The application is made by way of Notice of Originating Motion dated 31 May 2022 (OM) (encl 1) under s 18(1) of the Legal Profession Act 1976 ( LPA ).
[2] The Applicant seeks to be admitted and to appear as lead counsel on behalf of the Appellant, Dato' Sri Mohd Najib Bin Hj Abd Razak (the Appellant), in the Federal Court of Malaysia Criminal Appeal (s) No 05(L)-289-12/2021 (W), 05(L)-290-12/2021 (W) and 05(L)-291-12/2021 (W), Dato' Sri Mohd Najib Bin Hj Abd Razak v. Attorney General (the Appeal) and all other causes or matters related thereto.
Background Facts
[3] The Appellant's counsel, Tan Sri Muhammad Shafee Bin Md. Abdullah has filed an OM and Affidavit in Support dated 30 May 2022 praying for the following orders:
(a) that the Applicant be admitted to practise as an advocate and solicitor of the High Court of Malaya according to s 18(1) of the LPA to appear as lead counsel on behalf of the Appellant, in respect of the Appeal and all other causes or matters related thereto;
(b) that there be no order as to costs of this application; and
(c) such other and/or further reliefs and/or orders as deemed reasonable and fair by this Honourable Court to be granted to the Applicant.
[4] The grounds of this OM are summarised as follows:
(a) Vide the Appeal, the Appellant appeals to the Federal Court of Malaysia against the orders of the Court of Appeal of Malaysia which dismissed the Appellant's appeal against the convictions and sentences pronounced against him by the High Court of Kuala Lumpur;
(b) The Appeal will involve serious, complex and/or novel issues related to several branches of criminal and civil laws, practice and evidence, the constitutional rights of the Appellant, the conduct of proceedings by the prosecution, the adjudication of criminal cases by a trial Court and the administration of the Criminal Justice system;
(c) Messrs Shafee & Co are solicitors for the Appellant in the Appeal and the Appellant wishes to engage the professional services of the Applicant to act as lead counsel in the Appeal. Messrs Shafee & Co and Tan Sri Muhammad Shafee bin Md Abdullah have instructed the Applicant accordingly;
(d) For the purposes of the Appeal, the Applicant possesses special qualifications, experience and expertise which is not available amongst advocates and solicitors in Malaysia; and
(e) The Applicant is eligible and qualified to be admitted to practise as an advocate and solicitor of the High Court of Malaya according to s 18(1) of the LPA to appear as lead counsel on behalf of the Appellant in respect of the Appeal and all other causes or matters related thereto.
Issue
[5] As this OM is made under s 18(1) of the LPA , the only issue that requires the Court's consideration is:
Whether the Applicant has special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia for the purpose of the Appeal.
Section 18 Of The LPA
[6] Section 18 of the LPA reads as follows:
"Admission in special cases
18(1) Notwithstanding anything contained in this Act, the Court may, for the purpose of any one case and subject to the following subsections, admit to practise as an advocate and solicitor any person who, if he was a citizen of, or a permanent resident in, Malaysia, would be eligible to be admitted as an advocate and solicitor of the High Court and no person shall be admitted to practise as an advocate and solicitor under this subsection unless:
(a) for the purpose of that particular case he has, in the opinion of the Court, special qualifications or experience of a nature not available amongst advocates and solicitors in Malaysia; and
(b) he has been instructed by an advocate and solicitor in Malaysia.
(2) Any person applying to be admitted under this section shall do so by originating motion ve
