Mohamed Dzaiddin FCJ:

[1] Both appeals arose from the decision of the Court of Appeal given on 17 June 1998 which allowed an appeal of Sugumar Balakrishnan, the respondent herein, against the decision of Ian Chin J of the High Court Kota Kinabalu made on 26 December 1997 dismissing his application for an order of certiorari to quash the Director of Immigration Sabah's Notice of Cancellation of Entry Permit and its decision to cancel the respondent's entry permit dated 12 November 1997. (The State Authority Sabah is the appellant in Appeal No 01-1-99 and Sugumar is the appellant in Appeal No 01-2-99. Hence, reference to parties herein is according to Appeal No 01-1-99).

Factual Background

[2] The respondent is a Negeri Sembilan-born Malaysian who first went to Sabah in August 1975 to work as a teacher Later he qualified as a lawyer and since 1985 he has been practising law in the State under a work pass issued to him under reg 16(1) of the Immigration Regulations 1963. As he is not a person belonging to Sabah under s 71(1) of the Immigration Act 1959/63 (the Act), he is required to obtain a pass to enter and remain in Sabah under s 66(1) of the Act. Sometime in 1995 he applied for an entry permit which was granted to him on 27 December 1995 for a period of two years. It is common ground that on the completion of two years, the respondent would be treated as belonging to Sabah under s 71(1). However, on 12 November 1997, which was about six weeks before the expiry of the two-year period, the respondent was served with a notice of cancellation of entry permit dated the previous day under s 65(1) (c) of the Act. This notice was signed by the Director of Immigration Sabah (the director) under the direction of the State Authority pursuant to the powers conferred under s 65(1) of the Act. The notice states as follows:-

[3] At the same time, the respondent was also served with a copy of a special pass which allowed him to remain in Sabah for seven days.

[4] On 17 November 1997, the respondent was granted leave by the High Court to apply for an order of certiorari to quash the decision of the director dated 12 November 1997, but failed to obtain a stay of the cancellation of the entry permit. The stay was subsequently granted by the Court of Appeal. In the meantime, the State Authority was allowed to join as a party to the substantive motion.

[5] On 26 December 1997 lan Chin J dismissed the respondent's motion with costs and held:-

(1) that any challenge to the act or direction given to the director by the State Authority under s 65 of the Act cannot be questioned by the Court because it is caught by the privative clause in s 59A except for questions relating to compliance with procedural requirements of the Act or regulations governing those acts or decisions;

(2) that there is a proviso in s 64(1) that the operation of s 14 shall be subject to and in accordance with Cap 2 of Part VII, which means that s 14 must be read subject to ss 62-74 of the Act. Therefore, by cancelling the respondent's entry permit under s 65 instead of s 14, the director had not committed an error of law;

(3) that s 59 of the Act, as amended, provides that any order of the State Authority does not require the giving of an opportunity to be heard. In this case, the director has no discretion but to cancel the entry permit as directed by the State Authority. Hence, the act or the decision of the director also enjoys the exclusion of the right to be heard;

(4) In addition, since the cancellation was done in accordance with the law, there is no question of s 59 violating art 5(1) or 8(1) of the Federal Constitution;

(5) that by virtue of ss 59 and 59A there is no duty on the director to give any reasons for cancelling the respondent's entry permit.

Proceedings In The Court Of Appeal

[6] The Court of Appeal on 17 June 1998 allowed the appeal, set aside the order of the trial judge and ordered that certiorari be issued to remove and quash the cancellation of the responde