Rohana Yusuf J:

[1] This is an appeal by the defendant in encl 24 against the decision of the learned senior assistant registrar (SAR) who has allowed the preliminary objection raised by the plaintiff against Messrs Tee & Partners representing the defendant, on the ground of conflict of interest.

Brief Facts

[2] Encik Tee Han Cheong, a solicitor practising as a sole proprietor in the firm named and styled Messrs Tee & Partners, acted for the plaintiff in the preparation of a settlement agreement with the defendant. The settlement agreement was in respect of a settlement between the parties in relation to the sale and supply of cement by the plaintiff to the defendant from May 2000 to December 2004. On 26 July 2004, the defendant entered into the settlement agreement to settle part of the outstanding sum due to the plaintiff in the form of two units of shop lots. The plaintiff is now suing the defendant for a sum of RM1,139,579.81 being the balance outstanding under that settlement agreement. The same solicitor, Encik Tee Han Cheong, is now acting for the defendant in the present suit. The plaintiff raised objection on it and was allowed by the SAR. Dissatisfied, the defendant is now appealing in encl 24.

Decision Not Appealable

[3] First, learned counsel for the plaintiff, Encik N Ramesh, raised a preliminary issue that the ruling by the learned SAR is not appealable as it does not constitute decision that can be appealed as stipulated under s 3 of the courts of Judicature Act 1964. Encik Ramesh submitted that the ruling by the SAR in allowing the plaintiff's objection against Encik Tee representing the defendant, does not finally dispose of the rights of parties. He relied on the decision of the Appeal court in Syarikat Tingan Lumber Sdn Bhd v. Takang Timber Sdn Bhd, [2003] 2 MLJ 495. The court of Appeal held that any ruling made in the course of a trial which does not finally dispose of the rights of parties does not constitute a 'decision' that can be appealed. The court of Appeal finds that the ruling of the registrar on the admissibility of documents in that case was unappealable. I have difficulty in accepting the contention of Encik Ramesh. I am more in agreement with the submission of learned counsel for the defendant that under O 56 r 1 of the Rules of the High 1980 (RHC), "an appeal shall lie to a judge in chambers from any judgment, order or decision of the registrar". As submitted by Encik Tee, the decision of the SAR is appealable because under O 56 r 1 of the RHC an appeal can be made to a judge in chambers from any judgment, order or decision. The terms "Judgment, order or decision" are not qualified to only decisions that can dispose of the rights of parties. In fact they are not qualified in any way. Thus, it is clear that the decision by the SAR herein is therefore appealable under the said O 56 r 1 of the RHC. Furthermore, an appeal to a judge in chambers is a rehearing and is treated as though it comes before the court for the first time, as decided in the Federal court case of Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad; [1996] 1 MLJ 30; [1996] 1 CLJ 241; [1996] 1 AMR 215.

[4] More importantly, as submitted by Encik Tee, the learned SAR's decision relates to the right to consult and be defended by a legal practitioner of choice, which is a right granted by art 5(3) of the Federal Constitution. The decision of the late Anuar J (who went on to become the Chief Justice of Malaya) in Rhina Bhar v. Malaysian Bar, [1994] 1 MLJ 24 subjects that constitutional right to counsel of one's choice under art 5, only to practical limitations. I agree with Encik Tee that because the issue relates to such an important right, it should be disposed of at the outset of the trial as it may otherwise embarrass the parties and prejudice the whole process. Based on these reasons it is my finding that the decision of the learned SAR on the plaintiff's objection is appealable to a judge in chambers.

Conflict O