Sabah advocates hold exclusive rights to represent parties in arbitration under the Advocates Ordinance 1953, regardless of the non-exclusivity of representation by English barristers.

[1] These are two related appeals before us which were jointly heard as they arose from the same judgment of the Court of Appeal and involved same issue of law. The appeals are against the decision of the Court of Appeal dated 24 September 2012 which allowed the respondent's appeal with costs by reversing the decision of the High Court given on 26 October 2010. Leave to appeal was granted by this Court on 24 March 2014 on the following question of law:

"Whether s 8(1) of the Advocates Ordinance 1953 (Sabah Cap 2) read together with s 2(1)(a) and (b) thereof confer exclusivity of right to practise by representing and appearing for any party in arbitration proceedings in the State of Sabah to Sabah Advocates notwithstanding that Barristers and Solicitors in England do not have the exclusive right of representation in arbitration proceedings?"

[2] The learned High Court Judge held that foreign lawyers who are not advocates within the meaning of the Advocates Ordinance 1953 ("Ordinance") are prohibited by the Ordinance from representing parties to arbitration proceedings in Sabah. The Court of Appeal, on the other hand, held that the Sabah advocates have no exclusive right of representation at arbitration proceedings in the State of Sabah.

[3] We heard the appeals on 7 December 2015 and at the conclusion of the hearing, we unanimously allowed the appeals and with the consent of all the parties, no order was made on the costs of the appeals.

[4] We had indicated to the parties that we would give our full written judgment later. We now give our grounds for the decision.

Background Facts

[5] The facts relevant to these appeals are as follows: The appellants in case No 34, comprising more than 800 smallholders/claimants to Bagahak Scheme ("claimants") entered into a joint venture agreement with a company known as Borneo Samudera Sdn Bhd ("BSSB").

[6] The claimants had surrendered their respective interests in land lots in the scheme to a joint venture company in exchange for shares in a joint venture company formed under the joint venture agreement.

[7] The shareholders in the joint venture company comprised the claimants of the one part and BSSB on the other part. Subsequently, a dispute between the parties arose out of the joint venture agreement. Their dispute went for arbitration. The seat of the arbitration was in Sabah.

[8] The claimants were represented by Messrs CJ Liew & Co, Mr Alex Decena acted as the counsel for the claimants. BSSB was represented by Messrs Ho Chong Yong. Mr Ho Kin Kong acted as the counsel for BSSB. In addition, BSSB had also appointed one Mr Lam Ko Luen, a partner of Messrs Shook Lin & Bok, Kuala Lumpur to act as co-counsel together with Mr Ho Kin Kong.

[9] On or around August 2009, the claimants and BSSB appointed Mr Michael Hwang SC, a Singapore based Chartered Arbitrator and lawyer as the sole arbitrator.

[10] During the course of the arbitration, the claimants raised an issue that Mr Lam Ko Luen was required to obtain ad hoc admission to the Sabah Bar if he wished to appear at the arbitration hearing in Kota Kinabalu.

[11] An application was made on 3 September 2010 vide Originating Summons No: K17-29-2010 by the respondent (Mohamed Azahari Matiasin), who was practicing in the firm of Messrs Ho Chong Yong, for inter alia a declaration that foreign lawyers who are not advocates within the meaning of the Ordinance are not prohibited by the Ordinance from representing parties to arbitration proceedings in Sabah and that the Ordinance has no application to arbitration proceedings in Sabah.

[12] The learned High Court Judge held that foreign