Gopal Sri Ram JCA:

[1] This is an appeal against the refusal by the High Court of an application made to it under provisions of s 34 of the Legal Profession Act, 1976 ("the LPA"). The matter arose in this way.

[2] The appellant is an advocate and solicitor of the High Court in Malaya. He was admitted and enrolled as such on 28 January 1968. On 6 May 1994, he was convicted of an offence under s 193 of the Penal Code by the Sessions Court at Ipoh. It was fabrication of evidence that was presented to a Court in civil proceedings in which he was a litigant. He has appealed against that conviction and has been granted a stay of execution of the sentence that was passed upon him.

[3] On 15 September 1994, the appellant applied, in the usual way, to the respondent for a Sijil Annual to enable him to obtain a practising certificate for the year 1995. It is common ground that his clients' account is in order and that there is nothing on that count to warrant a withholding of the Sijil. Nevertheless, the respondent decided not to issue him a Sijil. It communicated its decision to the appellant by a letter dated 20 October 1994. That letter reads as follows:

Bar Council

20 October 1994.

Saudara DP Vijandran

Messers DP Vijandran & Associates

5th Floor, Wisma Yakin

Jalan Masjid India

50100 Kuala Lumpur

Saudara,

Re: Sijil Annual 1995

Thank you for your letter dated 15 September 1991 enclosing your application for Sijil Annual 1995.

We regret to inform you that the Bar Council cannot issue you with the Sijil Annual in view of your recent conviction which does not appear to be reflected in your application form and contradicts declaration (b).

In the circumstances, we return herewith your application and draw your attention to s 34 of the Legal Profession Act regarding the necessary application to Court.

Yang ikhlas

signed

Haji Sulaiman b Abdullah

Setiausaha Kehormat

Majlis Peguam

[4] The appellant then wrote on 31 October 1994 urging the respondent to reconsider its decision. That letter is in the following terms:

DP Vijandran Associates

Advocates And Solicitors

5th Floor, Wisma Yakin

Jalan Masjid India

50100 Kuala Lumpur

31 October 1994

The Honorary Secretary,

Bar Council,

Kuala Lumpur.

Dear Sir,

Re: Sijil Annual for 1996

Thank you for your letter dated 20 October 1994 which I received on 25 October 1994.

I write this letter to request you reconsider the decision not to issue the Sijil annual to me.

Let me first address the statement in the second para of your letter. That the declaration (b) endorsed on the form appears to be not statutorily required is one issue. Over and above that, I sincerely believe that the conviction referred to does not render me unfit to be a member of my profession.

In the first place the matter is on appeal to the High Court. Secondly it was contended by the prosecution itself that under s 193 (second limb) of the Penal Code "it is not necessary for the prosecution to prove: (a) that when making the statement, the accused knew it to be false; (b) that he made such false statement intentionally." As such a conviction under that section does not automatically render a person unfit to be a member of the Bar.

Secondly, I have complied with all the requisites under the Legal Profession Act for the issuance of the Sijil Annual. It is my view that the Bar Council is not empowered to withhold the issuance of such sijil.

I advance the above views not to create attrition but to ask that my case be considered fairly. As you will appreciate, I am loathe to make an application under s 34 unless you present me with no alternatives. Such an application by me will attract media attention and will damage my practice and ability to represent existing clients regardless of the outcome of such application.

I would very much appreciate reconsideration of the matter. Please take into consideration the irrevocable damage that will be caused to my practice and my existing clients. In the event that the Bar Council is still not minded to issue the Sijil, I will be gr