OIeh

Y.A. DATO' NIK HASHIM BIN NIK AB. RAHMAN

HAKIM

MAHKAMAH TINGGI MALAYA, KUALA LUMPUR

(29 JULY 1999)

HARDIAL SINGH SEKHON

V

PEGAWAI BURUH & 2 OTHER

MAHKAMAH TINGGI MALAYA, KUALA LUMPUR

(RAYUAN JENAYAH NO: 41 -371-98)

Y.A. DATO' NIK HASHIM BIN NIK AB. RAHMAN, J.

(29 JULY 1999)

Magistrate refused to take cognisance of an offence on complaint by appellant. There is an Order under article 17 of Schedule to Courts of Judicature Act 1964 declaring the appellant as a vexatious litigant and "be restrained from instituting any legal proceedings in any court save by leave of a judge." The appellant has no leave for lodging the complaint and applying for a summons in the Magistrate's Court and for launching this appeal before the High Court.

- Whether the word 'proceedings' in the Order excludes the application for summons in the Magistrate's Court.

-Whether the Order bars the appellant from making the application and the appeal.

-Whether the appellant had abused the process of court.

Cases refered to:

1. Hardial Singh a/I Han Singh v. Abu Talib bin Othman & Anor. Selangor Permohonan Jenayah Bil. 42-26-89 (Unreported)

2. In The Vexatious Actions Act 1896., In re Bernard Boaler (1915)1 KB 21.

3. Attorney General v. Vernazza (1960)3 All E.R. 97

Legislations refered to:

1. Vexatious Actions Act 1896, s.1.

2. Courts of Judicature Act 1964, s.3, article 17, Schedule.

3. Criminal Procedure Code (FMS Cap 6), s.128(1)(a).

Counsel

Hardial Singh Sekhon

(In person)

........... for the Appellant

Stanley Augustin

(Deputy Public Prosecutor)

........... for the Respondent

[1]

Judgment

Introduction

Encik Hardial Singh Sekhon (the appellant), who claimed to be an arbitrator by occupation, was dissatisfied with the decision of the learned Magistrate who refused to take cognisance of an offence on the complaint made by the appellant.

The gist of his complaint sworn before the Magistrate as appeared at p.19 of record, reads as follows:

"I'm applying for summons under section 136(1) of CPC against Tengku Dato' Omar bin Tengku Bot for an offence under section 166

[2]

Penal Code that Tengku Dato' Omar as the D.G. of Labour being a public servant knowingly disobeyed the direction of law to perform his duties under the Employment Act 1955 by exceeding his jurisdiction. That with the intention to cause or knowing it to be likely that he will by such disobedience cause injury to me and my client Harbajhan Singh a/I Samund Singh.

I was injured because I could not earn my livelihood as arbitrator and arbitrator advocate.. Since the said D.G. refused to direct Labour Officers including Encik Burhanuddin bin Mamat to allow me as arbitrator advocate to represent Harbajhan Singh in Labour Case No. 204/97 and others who wanted me to act as arbitrator advocate in Labour Court."

[3]

It is to be noted that, besides the complaints against the Labour Officer and his Director General, the appellant too made a complaint against the honourable Attorney General (A.G.) by his personal name alleging that the A.G.:

"........ has not performed his statutory duties to implement the Legal Profession (Amendment) Act 1978 Act 419 by advising the Minister to amend LPA as passed by Parliament" (at p.24).

I find the allegation against the A.G. mischievous and has no substance whatsoever. However, the appellant withdrew the complaint against the A.G. in the course of his argument before me.

Magistrate's decision

After hearing, the complaint, the learned Magistrate reserved her ruling and two days later she gave her decision in that she refused to take cognisance of the offence and this is what she said at pp. 27 and 28 in her grounds of decision:

[4]

"Setelah mendengar aduan Perayu, Mahkamah telah mengambil keputusan untuk tidak mengambil 'cognisance' ke atas aduan Perayu di bawah seksyen 128 KAJ"

She gave three reasons for her decision:

"Mahkamah telah membuat keputusan atas alasan-alasan berikut:

1. Setelah meneliti aduan Perayu dan dokumen-dokumen yang disertakan, Mahkamah men