Zaki Tun Azmi CJ:

Questions

[1] In light of the urgency of the matter, we gave our decision earlier. Here now are our reasons.

[3] The two questions posed before us were drafted as follows:-

(i) Whether an advocate and solicitor from Peninsular Malaysia is entitled to appear as counsel in an appeal to be heard in Putrajaya arising from a matter originating from the High Court in Sarawak and Sabah at Kuching?

(ii) Whether an advocate from Sarawak is entitled to appear as counsel in an appeal to be heard (by the Court of Appeal) in Putrajaya arising from a matter originating from the High Court in Sarawak and Sabah at Kuching?

(Words in parenthesis were added)

[4] The answers to the above questions would determine whether there exist any exclusive rights of the advocates and solicitors of Sabah and Sarawak to appear in Peninsular Malaysia and vice versa.

Facts Leading To The Questions

[5] Both appeals that came before us were not regarding the real subject matter of the original suit at the High Court level. These questions arose only as preliminary objections.

[6] At the Court of Appeal, one appeal was directed against the order of the High Court dismissing a petition presented under s. 181 of the Companies Act 1965 and the other was directed against the dismissal of a winding up petition. Both appeals were fixed before the Court of Appeal sitting at Putrajaya.

[7] At the Court of Appeal, the respondent was represented by Mr. Tommy Thomas, an advocate of the High Court in Malaya, leading other advocates from Sarawak. At the outset of the appeal, the appellant objected to Mr. Tommy Thomas representing the respondent.

Court Of Appeal's Decision

[8] The Court of Appeal unanimously held that Mr. Tommy Thomas had the right to appear at the Court of Appeal when it sits in Putrajaya. Gopal Sri Ram JCA, in dismissing the preliminary objection, said:-

[3] It is clear from a collective reading of the foregoing sections that only a person admitted to practice as an advocate at the High Court of Sarawak may appear before that Court and the Federal Court when it sits in Sarawak to hear appeals from that State. Be it noted that there is a glaring omission about the right of audience before this Court in appeals arising from decisions of the High Court in Sarawak. Be it also noted that the Ordinance has no extra-territorial effect. That is to say, it does not apply to appeals that are posted for hearing within the States of Malaya.

[4] Now, as against the Ordinance, there is s. 39 of the Courts of Judicature Act 1964 which is a federal law having effect throughout the Federation. That section says this in reference to the sittings of the Court of Appeal:-

39(1) The Court shall sit on such dates and at such places as the President may from time to time appoint:

Provided that the President may, when he deems it expedient, direct that any appeal be heard at any time and in any place in Malaysia.

(2) The President may cancel or postpone any sitting of the Court which has been appointed under subsection (1).

[5] We consider the first subsection and its proviso to be relevant to the case at hand. As may be seen, it empowers the President of this Court to direct it to convene anywhere within Malaysia and to direct any appeal to be heard anywhere therein. It follows that the President may direct an appeal against the decision of the High Court in Sabah and Sarawak to be heard by this Court anywhere in the States of Malaya. This is what has happened in the present instance. In such a case, the right of audience before this Court is governed, not by the Ordinance, but by the Legal Profession Act 1976 . And it is beyond dispute that Mr Thomas has the right of audience before this Court when it sits in Putrajaya.

[6] It follow